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MIDRASH  AND  MISHNAH 

A  STUDY  IN  THE 
EARLY  HISTORY  OF  THE  HALAKAH 

BY 
JACOB  Z.  LAUTERBACH,  Ph.D. 

PROFESSOR    HEBREW   UNION    COLLEGE 
CINCINNATI,   O. 


NEW   YORK 
THE   BLOCK    PUBLISHING    COMPANY 

1916 


PRINTED   IN   ENGLAND 
AT   THE  OXFORD   UNIVERSITY  PRESS 


i. 


TO   THE    MEMORY 

OF 

MY    FATHER 


343DD8 


MIDRASH   AND    MISHNAH 

A   STUDY   IN   THE   EARLY   HISTORY   OF   THE 

HALAKAH 

I 

The  teachings  of  the  Halakah,  as  preserved  to  us  in 
the  tannaitic  literature,  have  been  given  by  teacher  to 
disciple  and  transmitted  from  generation  to  generation  in 
two  different  forms,  namely,  Midrash  and  Mishnah.  The 
one,  Midrash,  shortened  from  'Midrash  TorahV  represents 
the  Halakah  as  an  interpretation  and  exposition  of  the 
Torah.  It  teaches  the  Halakah  together  with  its  scriptural 
proof,  that  is,  in  connexion  with  the  passage  from  the 
Pentateuch,  on  which  it  is  based  or  from  which  it  can 
be  derived,  thus  forming  a  halakic  commentary  to  the 
written  law  contained  in  the  Pentateuch.  This  form  is 
especially  used  in  our  halakic  Midrashim,  Sifra,  Sifre,  and 
Mekilta,  but  it  is  also  found  in  some  parts  of  the  collections 

^  The  term  t^niO  from  V^,1  'to  search,  inquire,  investigate',  means 
*  research,  inquiry ',  and  min  C^ID  accordingly  means  an  inquiry  into 
the  meaning  of  the  Torah,  an  exposition  of  all  laws  and  decisions  which 
can  be  discovered  in  the  words  of  the  Torah.  In  this  sense  the  term 
'Midrash  Torah'  is  used  in  the  Talmud  (b.  Kiddushin  49b)  where  it 
designates  the  halakic  interpretation  or  exposition  of  the  Torah.  As  we 
now  have  many  Midrashim  to  the  Torah  of  a  haggadic  character,  the  term 
Midrash  Torah  would  be  too  indefinite  to  designate  an  halakic  exposition 
of  the  Torah,  A  haggadic  exposition  of  the  Torah  would  also  be  a  Midrash 
Torah.  The  more  specific  term  Midrash  Halakah  is  therefore  now  used 
to  designate  a  halakic  interpretation  of  the  Torah.  See  the  writer's 
article  '  Midrash  Halakah  '  in  the  Jewish  Encyclopaedia,  VHI,  pp.  569-72. 
L.  B 


2  MIDRASH    AND    MISHNAH 

of  our  Mishnah  and  Tosefta,  as  well  as  in  many  so-called 
Midrash-Baraitot  scattered  in  both  the  Palestinian  and  the 
Babylonian  Talmud.  The  other  form,  the  Mishnah,  repre- 
sents the  Halakah  as  an  independent  work,  giving  its  dicta 
as  such,  without  any  scriptural  proof,  and  teaching  them 
independently  of  and  not  connected  with  the  words  of  the 
written  law.  For  this  reason  the  Mishnah  is  also  designated 
as  '  Halakah '  or  in  the  plural  '  Halakot ',  that  is,  merely 
rules  or  decisions.  This  form  is  especially  used  in  our 
collections  of  the  Mishnah  and  the  Tosefta,  but  it  is  also 
found  in  many  Baraitot  scattered  in  the  Talmud  and  in 
some  parts  of  our  halakic  Midrashim.^  (See  D.  Hoffmann, 
Ziir  Einhitimg  in   die   halacJdscJien   Midraschivi,   Berlin, 

i««7,  P-  3.) 

Of  these   two    forms    of    teaching   the    Halakah,    the 

Midrash  is  the  older  and  the  Mishnah  the  later.  The 
Midrash  was  the  original  form,  and  was  used  in  the  earliest 
times,  in  the  very  beginnings  of  the  Halakah.  This  is 
quite  self-evident,  as  the  Midrash  was  in  reality  the  origin 
of  the  Halakah.  The  dicta  of  the  Halakah  had  their 
source  in  the  Midrash  Torah,  i.e.  an  inquiry  into  the  full 
meaning  of  the  written  law  from  which  alone  the  earliest 
Halakah  derived  its  authority. 

The  returned  Babylonian  exiles,  constituting  the  new 
Jewish  community,  reorganized  by  Ezra  and  Nehemiah, 
accepted  the  written  Torah,  so  to  speak,  as  their  constitu- 
tion. They  entered  into  a  covenant  by  oath,  to  keep  and 
follow  the  laws  of  Moses  as  contained  in  the  book  read 

2  As  the  difference  is  only  in  form,  it  is  not  surprising  to  find  that  very 
many  of  the  Halakot  are  cast  in  both  forms.  Very  often  the  same  Halakot 
which  are  found  in  the  halakic  Midrashim  together  with  their  scriptural 
proofs  are  also  found  in  the  Mishnah  and  Tosefta  without  scriptural  proofs 
as  independent  Halakot. 


MIDRASH    AND    MISHNAH  3 

to  them  by  Ezra  (Neh.  8  and  lo.  30).     The  Book  of  the 
Law,  therefore,  as  read  and  interpreted  by  Ezra,  was  for 
them    the    only   authority   they    were   bound    to    follow. 
Whatever  was  not  given  in  the  book,  they  were  not  bound 
to   accept.      All    the    religious    practices    and    the    time- 
honoured  customs  and  even  the  traditional  laws,  if  there 
were  such,  had  to  receive  the  sanction  of  the  written  Law 
in  order  to  be  absolutely  binding  upon  the  people.     This 
means,  that  the  practices,  customs,  &c.,  had  to  be  recog- 
nized as  implied  in  the  written  Law  or  contained  in  its  fuller 
meaning.     The  teachers,  therefore,  interpreted  the  written 
Law  so  as  to  include  in    it  or  derive  from   it  all   those 
customs  and  practices.    Thus,  the  teachings  of  the  Halakah 
(for  all  such  rules,  customs,  practices,  and  traditional  laws 
constituted    the    Halakah)    had    to   be   represented  as    an 
interpretation  or  an  exposition  of  the  written  Law.     This, 
as  we  have  seen  above,  means,  to  be  given  in  Midrash-form. 
It  is  expressly  stated  of  Ezra  that  he  explained   and 
interpreted  the  Torah  to  the  people,  and  that  he  set  his 
heart    to   search    (D'm?)    the    meaning    of    the    Law,    to 
interpret  it,  and  to  teach  in  Israel  statutes  and  judgements 
{Ezra  7.  10).     We  learn  from  this,  that  Ezra  taught  only 
the  Book  of  the  Law  with  such  interpretations  as  he  could 
give  to    it.     His   successors,  the    Soferim,  who    were   the 
earliest  teachers  of  the  Halakah,  did  the  same.     They  gave 
all  their  teachings  merely  as  interpretations  to  the  Book  of 
the   Law.     Indeed,  the  very  name  Soferim  was  given  to 
them  because  it   characterized  their  manner  of  teaching. 
This  name  D^DID  is  derived  from  "|2D  'the  Book'.    It  means 
^  Bookmen',  and  it  designated  a  class  of  people  who  occupied 
themselves  with  the  Book  of  the  Law,  who  interpreted  it 
and  who  based  all  their  teachings  upon  this  book  exclu- 

£  2 


4  MIDRASH    AND    MISHNAH 

sively  (Frankel,  Hodegetica  in  Mischnam,  p.  3,  and  Weiss, 
Dor,  I,  p.  47). 

For  a  long  period  this  Midrash-form  was  the  only  form 
used  in  teaching  the  Halakah.  This  is  confirmed  by  reliable 
traditions  reported  to  us  in  Rabbinic  literature.  One  such 
report  is  contained  in  the  following  passage  in  the  Pal. 
Talmud  (Moed  katan  III,  7,  83^)  : 

.mabn  i^^ds*  vcay  bx  n^vc^N-ia  ids*  nsn  N'nn  ^dv  'i  n^^ 

'Who  is  to  be  considered  a  scholar?  Hezekiah  says, 
One  who  has  studied  the  Halakot  as  an  addition  to  and  in 
connexion  with  the  Torah."  Said  to  him  R.  Jose,  What 
you  say  was  [correct]  in  former  times,  but  in  our  day,  even 
[if  one  has  studied  merely  detached]  Halakot,  [he  is  to  be 
regarded  as  a  scholar].'  Here  it  is  plainly  stated  that  in 
earlier  times  (njVu'Nin)  the  only  form  of  teaching  Halakot 

2  The  term  ^ly^  means  'addition',  as,  for  instance,  in  the  phrase: 
N*lp7  "liyi  min^l  '  is  it  necessary  to  mention  the  custom  in  Judea  as  an 
addition  to  the  law  indicated  in  the  Scriptures?'  (b.  Kiddushin  6a).  It  is 
also  found  in  the  plural  form,  ni"Iiyi  'additions '  (b.  Erubin  83  a).  The 
expression  miH  "Tiyi  here  means,  therefore,  as  an  addition  to  the  Torah, 
i.  e.  to  teach  the  Halakot  not  independently  but  as  additions  to  the  passages 
in  the  Torah  from  which  they  are  derived.  In  almost  the  same  sense  it  is 
also  interpreted  by  the  commentator  Pne  Mosheh,  ad  loc. 

It  should  also  be  noticed  that  in  b.  Kiddushin  49  a  Hezekiah  says  that 
to  be  called  a  student  (ilJIB')  it  is  enough  if  one  has  studied  merely  detached 
Halakot.  This,  however,  does  not  contradict  his  saying  in  our  passage  in 
the  p.  Talmud.  For  D^H  1^ID?n  is  a  scholar  of  a  higher  degree  of  learning. 
From  b.  Megillah  26  b  it  is  evident  that  the  student  called  nJVJ'  is  not  as 
advanced  as  the  scholar  called  DSn  n^OPD.  To  be  considered  a  scholar, 
such  as  is  designated  by  the  name  D3n  T'D^n ,  Hezekiah  tells  us,  one  must 
study  the  Halakot  in  the  Midrash-form.  For  even  after  the  Mishnah-form 
had  become  joopular,  the  Midrash  was  considered  the  proper  form  to  be 
used  by  advanced  scholars.  See  Guttmann,  Ztir  Einhiimtg  in  die  Halakah, 
Budapest,  1909,  p.  20. 


MIDRASH    AND    MISHNAH  5 

was  as  an  addition  to  and  in  connexion  with  the  written 
Law,  that  is  to  say,  in  the  Midrash-form.  In  those  days, 
therefore,  one  could  not  acquire  a  knowledge  of  the 
Halakah,  i.  e.  become  a  scholar,  except  by  learning  the 
Midrash,  for  the  very  good  reason  that  the  halakic 
teachings  were  not  imparted  in  any  other  form. 

Sherira  Gaon  who  no  doubt  drew  upon  reliable  sources 
likewise  reports  in  his  Epistle  (Neubauer,  M.  J.,  ch.  I,  p.  15) 
that  '  in  the  earlier  period  of  the  second  temple,  in  the 
days  of  the  earlier  teachers,  all  the  teachings  of  the  Halakot 
were  given  in  the  manner  in  which  they  are  found  in  our 
Sifra  and  Sifre ',  that  is,  in  the  Mi  jrash-form.*  Modern 
scholars^  have,  accordingly,  recognized  it  as  an  established 
historic  fact  that  the  Midrash  was  originally  the  exclusive 
form  in  which  all  teachings  of  the  Halakah  were  given. 

Not  only  were  those  Halakot  which  were  derived  from 
some  scriptural  passage  by  means  of  interpretation  taught 
in  Midrash-form,  that  is  to  say  in  connexion  with  the 
passages  which  served  as  proof,  but  also  such  Halakot 
and  teachings  as  were  of  purely  traditional  origin— rules, 
practices,  and  customs  that  had  no  scriptural  basis  at  all 
were  likewise  taught  in  this  manner.  The  latter  were  taught 
in  conjunction  with  some  scriptural  passage  with  which 
they  could  in  some  manner  be  connected,  or  together  with 
certain  written  laws  to  which  they  were  related,  either  as 

*  The  passage  in  the  letter  of  Sherira  Gaon  reads  thus  :  ''"laDI  X"lDD1 

•'Jtr  :^^pc3  sip^yr^i  •'Xip^  ^*^I2^^^  n'^m  p''ni  inj-'j  \x-ipi  ic-n 
\\rh   ^Jn  iin   ^nms   \^'\r\   dib^   "'xcp   pnin   rfovn.     They  taught 

'them',  i.e.  the  Halakot.  only  in  the  form  used  in  our  Sifra  and  Sifre, 
i.  e.  Midrash, 

B  N.  Krochmal  in  More  Nebttke  Ha-Zeiiiaii,  porta  XIII,  Lemberg,  1851, 
pp.  166-7  •  ^'  Frankel  in  Hodegetica  in  Misc/tiiatn  ;  Weiss,  Dor  Dor  ivc-DorsIiow 
and  Mabo  la-MccIiilta ;  Oppenheim,  '  Toledot  ha-Mishnah'  in  Bctli  Talmud^ 
II  ;  D.  Hoffmann,  Die  ersie  Mischnah,  Berlin,  1882  ;  and  others. 


6  MIDRASH    AND    MISHNAH 

corollary  or  modification.  (See  D.  Hoffmann,  Die  erste 
Mischnah,  Berlin,  1882,  pp.  5-7.)  This  procedure  was 
necessary,  because  the  only  recognized  authority  was  the 
written  Book  of  the  Law  which  the  teachers  used  as  their 
text-book  in  teaching.  However,  in  teaching  out  of  this 
text-book,  they  gave  not  only  the  meanings  of  words  and 
the  explanations  of  each  written  law,  but  also  additional 
rules  as  well  as  modifications  to  some  laws.  All  of  this 
may  be  included  in  an  exposition  (CJ'mo)  of  the  Torah  and 
could  properly  be  taught  in  connexion  with  the  text. 
Thus  the  Midrash-form  could  continue  to  be  in  exclusive 
use  for  teaching  the  Halakah,  even  after  the  latter,  in  the 
course  of  time,  came  to  include  traditional  laws  and 
customs,  as  well  as  new  institutions  and  decrees  issued  and 
proclaimed  by  the  teachers  themselves  in  their  capacity  as 
religious  authorities.'' 

The  Mishnah-forni,  on  the  other  hand,  is  of  a  much 
later  date.  It  was  introduced  a  long  time  after  the 
Midrash-form "   and   was   used   side    by  side   with    it.     At 

^  Weiss,  Mabo  la-MecliiUa,  p.  iv,   remarks   about  the  Soferim  :    ??3Dw' 

ppTim  m-'un  nmpn  ntt's*  onm  dj  i^'p^  Nnpo^  n':'n'2i  Doinn. 

Although  the  instance  mentioned  by  him  as  proof  for  his  statement  is  not 
a  teaching  of  the  Soferim  (see  below,  note  55),  yet  the  statement  as  such 
is  correct.  The  Soferim  or  those  who  only  taught  in  the  Midrash-form 
could  include  in  their  teachings  altogether  new  laws  and  decrees,  issued 
by  themselves  as  religious  authorities,  by  connecting  them  with  the 
scriptural  laws.  Only  we  may  assume  that  it  rarely  happened  that  they 
taught  a  traditional  law  or  a  decree  of  their  own  merely  in  connexion  with 
some  scriptural  law.  In  most  cases,  the  Soferim,  who  had  charge  of  the 
text  of  the  books  of  the  law,  could  manage  to  indicate  in  the  text  itself, 
b}-  means  of  certain  signs  and  slight  alterations,  any  traditional  custom 
or  decree  of  their  own.  Thus,  these  same  decrees  could  be  taught  as 
interpretations  of  the  written  law.  See  N.  Krochnjal,  op.  cit.,  p.  167. 
Compare  also  below,  notes  36  and  37. 

"^  Georg  Aicher  (^Das  Alte  Testament  in  der  Mischnali,  Fr.-i.-Br.,  1906, 
pp.  165  ft")  stands  alone  in  the  assumption  that  the  Mishnah  is  older  than 


MIDRASH    AND    MISHNAH  7 

no  time  did  the  Mishnah-form  become  the  exclusive 
method  for  teaching  the  Halakah,  because  the  Midrash 
never  ceased  to  be  in  use.^  At  just  what  date  this 
Mishnah-form  was  introduced,  that  is  to  say,  just  when 
the  teachers  of  the  Halakah  began,  for  the  first  time,  to 
teach  Halakot  independently  of  the  written  law,  has,  to  my 
knowledge,  not  yet  been  ascertained.  Sherira  Gaon  who, 
as  we  have  seen,  informs  us  that  at  some  period  in  earlier 
times  the  Midrash-form  was  the  only  one  in  use,  does  not 
state  exactly  how  long  that  period  lasted,  and  does  not 
mention  when  the  Mishnah-form  was  introduced.  Neither 
is  there  any  other  gaonic  report  to  tell  us  when  this 
happened.^  Hoffmann  {op.  cit.,  pp.  12-13)  states  that, 
according  to  the  views  held  by  the  Geonim,  the  Mishnah- 
form  was  first  introduced  in  the  days  of  Hillel  and 
Shammai,  but  he  fails  to  bring  proof  for  this  statement. 
To  my  knowledge,  there  is  no  foundation  in  gaonic 
literature  for  the  views  ascribed  by  Hoffmann  to  the 
Geonim.      Hoffmann    bases    his    theory    on    the    spurious 

the  Midrash.  This  cannot  be  maintained.  His  statement  (p.  64)  that 
'the  appearance  of  scriptural  proof  in  connexion  with  the  Halakah  was  due 
to  the  radical  changes  effected  by  the  catastrophe  of  the  year  70 ',  hardly 
needs  any  refutation.  The  many  Halakot  in  the  Midrash  form  given  by 
teachers  in  the  time  of  the  Temple  as  well  as  the  disputes  between  the 
Sadducees  and  Pharisees,  hinging  upon  different  interpretations  of  scriptural 
passages  as  bases  for  their  respective  Halakah,  ought  to  have  shown  Aicher 
to  what  extent  Blidrash  was  used  before  the  year  70. 

8  We  must  emphasize  this  fact  against  the  theory  advanced  by  Weiss 
and  Oppenheim  and  also  by  Jacob  Bassfreund  in  his  Ziir  Redaction  der 
Miscbnah  (Trier,  1908,  pp.  19-24),  that  there  was  a  time  when  the  Midrash- 
form  was  altogether  abandoned,  and  the  teachings  of  the  Halakah  given 
exclusively  in  Mishnah-form.  We  shall  see  that  this  theory  is  untenable 
(below,  notes  15,  22,  and  53). 

^  The  account  given  in  the  letter  of  Sherira  stops  very  abruptly.  See 
the  discussion  at  p.  108  of  this  essay. 


8  MIDRASH    AND    MISHNAH 

responsum  found  in  Shaare  Teshubah,  No.  20,  and  ascribed 
to  Hai  Gaon,^°  in  which  the  following  passage  is  found : 

1D3  njc'D  mo  niND  c^c'  vn  fprn  ^^n  ny  irm  hb^d  nitD''o  yn 
ohyn   pDonji  i:yDnj  i^^ki  ^^n  pi  ^j^oa   nc'Di'    n"n"n    Djn:t> 

.nab 

'  Know,  that  from  the  days  of  Moses  our  Teacher  until 
Hillel  the  Elder,  there  were  six  hundred  orders  of  Mishnah 
just  as  God  gave  them  to  Moses  on  Sinai.  However,  from 
the  time  of  Hillel  on  the  world  became  impoverished,  and 
the  glory  of  the  Law  was  diminished,  so  that,  beginning 
with  Hillel  and  Shammai,  they  arranged  only  six  orders.' 
It  is  evident  that  this  responsum  cannot  be  taken  to 
represent  a  reliable  gaonic  tradition,  as  it  is  apparently 
based  on  the  haggadic  passage  in  Hagigah  14  a,  and  is 
accordingly  of  merely  legendary  character.  Aside  from 
this,  the  passage  does  not  say  what  Hoffmann  has  read 
into  it.  It  does  not  even  deal  with  the  origin  of  the 
Mishnah-form.  If  anything,  we  can  see  from  this  respon- 
sum that  its  author,  quite  to  the  contrary,  assumed  that 
the  Mishnah-form  was  very  old,  and  that  it  was  given  to 
Moses  on  Sinai. ^^     He  deals  merely  with  the  origin  of  six 

^'  This  responsum  had  been  added  by  some  later  hand  to  the  responsa 
of  Hai  Gaon,  but  does  not  belong  to  the  Gaon.  Comp.  Harkavy,  Studien 
und  MiUeiltingen,  IV,  p.  xiv.  The  fact  that  this  report  is  repeated  in 
Seder  Tannaim  we-Amoraim,  (Breslau,  1871,  p.  29)  and  in  Sefer  Hakanah, 
p.  81  b,  and  in  S.  Chinon's  Sefer  Kritot  (Book  Yemot  Olam,  Amsterdam 
1709,  p.  20  a)  does  not  in  the  least  alter  its  legendary  character  and  cannot 
make  it  more  reliable,  for  the  authors  of  all  these  works  drew  from  one  and 
the  same  source.  This  source  cannot  be  of  a  more  reliable  character  than 
the  Midrash  Abkir,  from  which  the  Yalkut  (Genesis,  sec.  42)  quotes  the 
statement  that  Methuselah  studied  900  orders  of  Mishnah,  pHi*   n^nVJ'?3 

njtro  mo  msD  'd  njic*  n\-n  n\T  -iidj. 

"  The  belief  that  the  Mishnah  was  given  to  Moses  on  Sinai  is  repeatedly 


MIDRASH    AND    MISHNAH  9 

orders  of  Mishnah  which  he  assumed  to  have  been  extant 
in  the  days  of  Hillel  and  Shammai.  These  six  orders 
were  in  his  opinion  but  a  poor  small  remnant  of  the  six 
hundred  orders  which  Moses  received  from  God  on  Sinai 
and  which  were  extant  till  the  days  of  Hillel  when  the 
world  became  impoverished  and  the  glory  of  the  Torah 
diminished.  Hoffmann  arrives  at  his  interpretation  of  this 
responsum  by  arbitrarily  giving  two  different  meanings  to 
one  and  the  same  term  used  by  the  author  twice  in  one 
sentence.  He  states  (p.  13)  that  when  the  Gaon  speaks  of 
the  'six  hundred  orders  of  Mishnah  ',  he  is  using  the  term 
*  Mishnah '  in  a  broad  sense  to  designate  traditional  law  in 
the  Midrash-form  and  not  in  the  Mishnah-form,  but  when 
the  Gaon  speaks  of  the  reduced  '  six  orders '  extant  in  the 
days  of  Hillel  and  Shammai,  he  uses  the  term  '  Mishnah ' 
in  a  narrow  sense  to  designate  only  independent  Halakot 
in  the  Mishnah-form.  This  distinction  is  extremely  arbitrary. 
Furthermore,  when  Hoffmann  concludes  his  argument  with 
the  remark  {ibid.,  p.  13)  that  'No  doubt  the  six  orders  of 
Mishnah  introduced  in  the  days  of  Hillel  and  Shammai 
were,  like  our  present  Mishnah,  composed  in  the  form  of 
independent  Halakah,  and  by  this  iiczv  form  were  distin- 
guished from  the  earlier  form  of  teaching '.  he  no  longer 

expressed  in  the  Haggadah.  See  b.  Berakot  5  a  and  p.  Hagigah  I,  8,  76  d. 
In  the  Piike  de- Rabbi  Eliezer,  ch.  xlvi,  it  is  said  that  during  the  forty  days 
which  Moses  spent  on  the  mountain,  receiving  the  Law,  he  studied  the 
Scriptures  (N"lpO)  in  the  daytime  and  Mishnah  at  night.  In  Pesikta 
Rabbati  V  (Friedmann,  p.  14  b)  it  is  said  that  Moses  wished  to  have  the 
Mishnah  written,  but  God  told  him  that  in  order  to  distinguish  Israel  from 
other  nations  it  was  better  that  the  Mishnah  should  be  given  to  Israel 
orally,  so  that  the  other  nations  should  not  be  able  to  claim  it  for  themselves. 
See  also  Tanhuma,  Ki-Tissa  (Buber,  pp.  58b  and  59a),  and  p.  Hagigah,  /.  c. 
The  author  of  our  responsum  had  as  his  authority  such  haggadic  sayings 
when  he  spoke  of  the  Mishnah  which  God  gave  to  Moses  on  Sinai. 


lO  MIDRASH    AND    MISHNAH 

gives  the  views  of  the  author  of  the  responsum,  but  his 
own.     And  these  views  are  absolutely  wrong.^^ 

Thus  we  see  that  there  is  no  mention  in  gaonic  literature,^' 
of  the  time  when  this  innovation  in  the  form  of  teaching 
the  Halakah  took  place.  Neither  is  there  any  report  in 
talmudic^*  or  gaonic  sources  about  the  cause  of  this 
innovation.  We  are  not  told  why  it  was  necessary  or 
desirable  to  introduce  a  new  form  of  teaching  Halakah 
alongside  of  the  older  Midrash-form. 

Modern  scholars  have  attempted  to  answer  these 
questions  ;  both  to  fix  the  date  and  to  give  the  reasons 
for  this  innovation  in  the  method  of  teaching.  However, 
the  various  theories  advanced  by  these  scholars  are  all 
unsatisfactory.  They  are  the  result  of  mere  guess-work — 
without  solid  proof  or  valid  foundation.     It  will  be  shown 

12  There  is  no  doubt  that  at  the  time  of  Hillel  and  Shammai  there  were  no 
Mishnah-collections  like  our  Mishnah.  The  responsum  in  Shaare  Teshubah, 
§  187,  which  tells  us  that  when  a  certain  Gaon  died  they  found  that  he  had 
the  six  orders  of  the  Mishnah  of  the  days  of  Hillel  and  Shammai,  which  had 
been  hidden  away,  is  spurious  and  legendary.  See  S.  D.  Luzzatto,  Beth 
ha-Ozar,  pp.  55b-56a.  Although  there  were  in  the  times  of  Hillel  and 
Shammai  collections  of  Halakot  composed  in  Mishnah-form,  this  form  was 
not  new  to  them  and  could  not  be  the  characteristic  which  distinguished 
them  from  the  form  of  teaching  used  before.  For,  as  we  shall  see,  there 
had  been  even  before  Hillel  and  Shammai  collections  of  independent 
Halakot  in  the  Mishnah-form.  And  if  Hillel  himself  composed  a  Mishnah- 
coUection,  he  did  not  arrange  it  in  order,  and  did  not  divide  it  into  tractates 
as  Pineles  (Darkah  shel  Torah,  pp.  8-9)  and  Bassfreund  {Zttr  Redaction  der 
Mischnali,  p.  25)  assume.  The  arguments  brought  forward  by  the  latter  to 
prove  that  Hillel's  Mishnah-collection  was  arranged  and  divided  into  tractates 
are  not  convincing. 

13  On  Saadya's  opinion  see  further  below,  pp.  113  ff. 

1*  There  is,  however,  as  we  shall  see  in  the  course  of  this  essay,  a  report 
in  the  Talmud  stating  until  when  the  Midrash-form  was  in  exclusive  use. 
This  talmudic  report  has  been  overlooked  or  else  not  correctly  understood, 
for  not  one  of  the  scholars  dealing  with  the  problem  of  fixing  the  date  of 
the  beginning  of  the  Mishnah-form  has  referred  to  it. 


MIDRASH    AND    MISHNAH  II 

that  some  are  based  upon  inaccurate  reasoning,  and  all  of 
them  are  in  contradiction  to  certain  established  historic 
facts. 

We  have  already  seen  that  the  theory  which  Hoffmann 
ascribes  to  the  Geonim  has  no  foundation  in  gaonic 
literature  and  that  it  is  altogether  Hoffmann's  theory. 
But,  no  matter  whose  it  is,  the  theory  itself  cannot  be 
maintained.-^^  In  the  first  place,  there  were  Mishnah- 
collections  before  the  time  of  Hillel  and  Shammai,  as 
Rosenthal  has  proved  {Ueber  den  Ztisanniienhang  der 
Mischuah,  Erster  Teil,  2te  Aufl.,  Strassburg,  1909),  In  the 
second  place,  the  introduction  of  a  new  form  necessarily 
precedes  any  collection  of  Halakot  composed  in  this  new 
form.  It  must  be  quite  plain  that  there  were  individual, 
detached  Halakot  taught  in  the  Mishnah-form  (and  not  in 
the  Midrash-form)  before  any  collection  of  such  detached 
Halakot  could  be  made.  Accordingly,  if  we  assume  with 
Rosenthal  [op.  cit.,  p.  iii)  that  a  collection  of  such  inde- 
pendent Halakot  in  the  Mishnah-form  was  already  arranged 
in  the  time  of  Simeon  ben  Shetah,  we  have  to  go  still  farther 
back  in  fixing  the  time  when  the  teachers  first  began  to 
separate  the  Halakah  from  its  scriptural  proof  and  teach  it 
independently,  as  Mishnah.  This  would  bring  us  to  about 
one  hundred  years  before  the  time  of  Hillel  and  Shammai. 
Not  only  is  this  theory  of  Hoffmann  wrong  in  respect  to 

^^  Compare  also  Bassfreund  {op.  cit.,  pp.  i8  fi'.)  who  likewise  seeks  to 
refute  Hoffmann's  theory.  Some  of  Bassfreund's  arguments,  however,  are 
not  sound.  He  is  altogether  wrong  in  assuming  that  for  a  long  time  before 
Hillel  the  Mishnah  was  the  exclusive  form  used  in  the  teaching  of  the 
Halakah,  and  that  Hillel  was  the  first  to  reintroduce  the  Midrash-form. 
He  confuses  the  development  of  the  Midrash  methods  which  were  furthered 
by  Hillel  with  the  use  of  the  Midrash-form  which  had  no  need  of  being 
introduced  by  Hillel  since  it  was  never  abandoned  (see  above,  note  8,  and 
below,  note  22). 


12  MIDRASH    AND    MISHNAH 

the  date  given  for  the  introduction  of  the  Mishnah-form, 
but  it  is  also  unsatisfactory  in  regard  to  the  cause  of  this 
innovation. 

According  to  this  theory,  the  Mishnah-form  was  intro- 
duced in  order  to  assist  the  memory  in  mastering  the 
contents  of  the  traditional  law.^^  However,  it  is  difficult 
to  see  how  the  teachers  could  have  considered  the  new 
form  of  greater  aid  to  the  memory  than  the  old  form. 
This  new  form  is  on  the  contrary  quite  apt  to  make  it 
more  difficult  for  the  memory.  It  seems  to  us  that  it  is 
less  of  a  task  for  the  memory  to  retain  Halakot  taught 
in  the  Midrash-form.  The  written  Law,  being  the  text- 
book, each  passage  in  it,  as  it  is  being  read,  helps,  by 
mental  association,  to  recall  all  the  halakic  teachings 
based  upon  it.  On  the  other  hand,  it  is  much  harder 
to  remember  detached  Halakot  given  in  an  independent 
form,  especially  when  they  are  not  arranged  systematically 
or  topically  but  merely  grouped  together.  This,  we  must 
keep  in  mind,  was  actually  the  mode  of  arrangement  used 
in  the  earlier  Mishnah  collections.^'^ 

Hoffmann  himself  must  have  felt  that  this  theory  was 
not  satisfactory,  for  later  in  his  book  he  advances  another 

^^  The  same  reason  is  also  given  by  Frankel  and  Weiss.  Thej-  all  seem 
to  have  been  influenced  by  the  liaggadic  sayings  found  in  the  Talmud, 
sayings  which  exaggerate  the  number  of  Halakot  known  to  former 
generations. 

"  Hoffmann  makes  the  mistake  of  assuming  {pp.  cit.,  pp.  13,  15,  and  48) 
that  simultaneously  with  the  separation  of  the  Halakot  from  their  scriptural 
basis  came  the  grouping  of  such  detached  Halakot  into  orders  and  treatises, 
as  we  have  them.  But  this  is  absolutely  wrong.  The  earlier  Mishnah  went 
through  many  different  forms  of  grouping  before  it  was  finally  arranged 
according  to  subjects  and  divided  into  treatises  and  orders.  See  the  writer's 
article  in  the  Jewish  Encyclopaedia,  VW,  p.  611.  The  opinions  expressed 
by  the  writer  there  on  page  610  (following  Hofi"mann)  are  hereby  retracted. 


MIDRASH    AND    MISHNAH  I3 

and  altogether  different  theory  {op.  cit.,  p.  48).  According 
to  this  second  theory,  the  innovation  was  not  made  for  the 
purpose  of  aiding  the  memory,  and  was  not  made  in  the 
days  of  Hillel  and  Shammai.  Here  Hoffmann  assumes 
that  the  Mishnah-form  was  first  introduced  in  the  days 
of  the  later  disciples  of  Hillel  and  Shammai.  The  purpose 
of  the  innovation,  he  explains,  was  to  maintain  the  unity  of 
the  Halakah  by  minimizing  the  differences  of  opinion  and 
eliminating  the  disputes  about  the  halakic  teachings  which 
arose  among  these  very  disciples  of  Hillel  and  Shammai. 
These  disputes,  Hoffmann  tells  us,  were  in  many  cases  only 
formal,  namely,  concerning  the  underlying  Midrash  or  the 
scriptural  proof  for  the  halakic  teaching.  The  traditional 
Halakah,  as  such,  was  agreed  upon  by  all  the  teachers. 
That  is  to  say,  there  was  no  dispute  about  the  transmitted 
rules  and  decisions  which  all  the  teachers  received  alike. 
The  teachers,  however,  often  did  disagree  as  to  the 
scriptural  passages  and  their  interpretations  whereon  these 
received  halakic  decisions  were  based.  One  teacher  would 
derive  a  certain  Halakah  by  interpreting  a  given  passage 
in  a  certain  manner.  Another  teacher  would  deduce  the 
same  Halakah  from  another  passage,  or  even  from  the 
same  passage  but  by  means  of  another  interpretation. 
Thus,  as  long  as  the  Halakah  was  taught  only  in  Midrash- 
form  there  existed  many  differences  of  opinion  between 
the  teachers,  not  in  regard  to  the  halakic  decisions  or 
rules  in  themselves  but  in  regard  to  their  midrashic  proof 
and  support.  The  teachers  of  those  days  who  were  very 
anxious  to  maintain  harmony  among  themselves  and 
unanimity  in  their  teachings  therefore  decided  to  separate 
the  Halakah  from  the  Midrash  and  to  teach  it  inde- 
pendently of  the   scriptural    proof  or  support.     In  other 


14  MIDRASH    AND    MISHNAH 

words,  they  introduced  the  Mishnah-form— the  Halakah 
as  an  independent  branch  of  learning.  By  this  innovation 
all  the  differences  of  opinion  and  disputes  about  the 
midrashic  proof  necessarily  disappeared.  Thus  uniformity 
was  restored  in  teaching  the  Halakah,  and  harmony  was 
established  among  the  teachers. 

This  second  theory  of  Hoffmann  is  even  less  tenable 
than  the  first.  In  the  first  place,  it  fixes  the  date  for  the 
introduction  of  the  Mishnah  even  later  than  the  first  theory. 
Consequently,  in  this  respect  it  is  refuted  by  the  same 
arguments  that  were  brought  against  the  first  theory. 
We  have  seen  above  that  there  were  Halakot  in  Mishnah- 
form,  even  collections  of  such  Halakot,  at  a  much  earlier 
date.  Furthermore,  the  explanation  of  the  cause  for  the 
innovation  put  forth  in  this  theory  presents  a  palpable 
error  in  reasoning.  It  presupposes  that  the  decisions  of 
the  Halakah,  as  such,  were  older  than  their  midrashic 
connexion  with  the  scriptures,  and  that  at  some  earlier 
time  they  had  been  transmitted  independently  of  scriptural 
proofs.  For  this  reason  the  teachers  could  well  be 
unanimous  in  accepting  the  Halakah  and  yet  find  cause  for 
dispute  as  to  methods  of  proving  certain  halakic  decisions 
from  the  scripture  by  means  of  the  Midrash.  But  this 
means  nothing  else  than  that  there  were  some  Mishnahs. 
that  is,  independent  Halakot  before  the  disputes  about  the 
scriptural  proofs  caused  their  separation  from  the  Midrash. 
This  line  of  reasoning  contradicts  itself.  It  sets  out  to  find 
the  cause  for  the  first  introduction  of  the  Mishnah-form, 
but  assumes  that  before  this  introduction  some  Halakot 
had  already  been  transmitted  in  Mishnah-form.  In  other 
words,  this  so-called  first  introduction  was  really  not  a  first 
introduction. 


MIDRASH    AND    MISHNAH  I5 

If  they  had  taught  only  in  Midrash-form,  the  alleged 
evil  results  which  the  Mishnah-form,  according  to  Hoffmann, 
was  to  remedy  could  never  have  arisen.  It  would  have 
been  impossible  for  the  teachers  to  agree  upon  a  halakic 
decision,  and  at  the  same  time  to  disagree  about  its 
scriptural  proof.  Since  every  teacher  received  each 
Halakah  in  the  same  Midrash-form,  that  is,  as  an  in- 
terpretation of,  or  connected  with,  a  certain  scriptural 
passage,  every  one  who  remembered  the  decision  must 
have  remembered  the  form  in  which  he  received  it.  that 
is,  the  scriptural  passage  with  w^hich  it  was  connected. 
It  is  very  improbable  that  a  teacher  remembering  the 
decision,  but  having  forgotten  the  scriptural  basis,  would 
have  supplied  another  scriptural  proof  therefor,  and  then 
disputed  with  his  colleagues  who  remembered  the  right 
passage  on  which  this  Halakah  was  based.  If  he  did 
forget  the  passage  for  which  the  Halakah  was  an  inter- 
pretation, the  mere  mention  of  that  passage  by  his  colleagues 
must  have  brought  it  back  to  his  memory.  It  is  evident 
that  there  could  be  no  universal  acceptance  of  a  Halakah 
together  with  disputes  regarding  its  proofs,  unless  such  a 
Halakah  had  been  taught  apart  from  its  proof.  This, 
however,  was  not  done,  as  long  as  the  Midrash-form  was 
in  exclusive  use,  that  is,  as  long  as  the  Halakah  was  merely 
taught  as  a  commentary  on  the  text  of  the  Law.^^ 

18  This  would  hold  true  even  if  we  should  believe  in  the  genuineness 
of  the  so-called  ''^Dr^  HC'D^  mn^n,  that  is,  that  there  had  been  given  oral 
laws  to  Moses  on  Sinai  and  transmitted  independently  of  the  written  law. 
For,  as  Hoffmann  himself  states  (o/.  «V.,  p.  7),  even  all  the  traditional 
teachings  were  taught  together  with  the  scriptural  laws  and  connected 
with  them  in  the  Midrash-form.  All  through  the  period  of  the  Soferim, 
and  according  to  Hoffmann  till  the  time  of  the  disciples  of  Hillel  and 
Shammai,  such  traditional  laws  would  somehow  be  connected  with  the 
Scriptures.     The  mental  attitude  of  the  teachers  was  not  in  the  direction 


l6  MIDRASH    AND    MISHNAH 

Quite  as  unsatisfactory  is  the  theory  advanced  by 
Z.  Frankel  {Hodegetica  in  Mischnam,  pp.  6,  7,  and  10). 
According  to  this  theory,  the  innovation  of  teaching  de- 
tached Halakah  in  the  Mishnah-form  was  made  by  the 
last  group  of  Soferim.^^  This  was  done  to  overcome  three 
difficulties  which  Frankel  tells  us  existed  in  those  days. 
In  the  first  place,  the  halakic  decisions  based  upon  the 
individual  passages  had  increased  to  such  an  extent  that 
the  task  of  studying  and  teaching  them  in  the  Midrash- 
form  became  very  difficult.  In  the  second  place,  the 
absence  of  inner  logical  connexion  between  the  individual 
dicta   of  the  Halakah    made   its   study  a  work   of  mere 

of  separating  such  traditional  laws  from  the  scriptural  passages  with  which 
they  had  for  centuries  been  connected.  This  would  have  remained  their 
attitude  even  if  they  had  realized  that  such  a  connexion  was  merely  artificial 
(see  below,  note  27).  No  differences  of  opinion  were  therefore  possible  as  to 
how  such  traditional  laws  were  to  be  connected  with  the  Scripture. 

It  should  be  noted  that  Hoffmann  seems  to  have  subsequently  abandoned 
both  his  theories.  In  his  introduction  to  his  translation  of  the  Mishnah, 
Seder  Nezikin  (p.  x,  note  3),  he  states  that  according  to  the  Palestinian 
Talmud  the  so-called  Number-Mishnahs  were  already  compiled  and  redacted 
by  the  men  of  the  Great  Synagogue.  He  refers  to  the  passage  in  Shekalim, 
V,  48c,  which,  like  Weiss  and  Oppenheim,  he  misinterprets.  See  below, 
note  26. 

13  N.  Krochmal  {op.  cit.,  pp.  174-5")  ^'so  assumes  that  even  the  last  of 
the  Soferim  began  to  teach  independent  Halakot  (so  also  Pineles,  Darkah 
shel  Torah,  pp.  8-9).  Like  Frankel,  Krochmal  also  gives  as  the  reason  the 
increased  number  of  the  Halakot  and  new  decisions  which  could  no  longer 
be  connected  with  the  Scripture  in  the  form  of  the  Midrash.  There  is, 
however,  a  great  difference  of  opinion  between  Krochmal  and  Frankel  as  to 
dates.  Krochmal  extends  the  period  of  the  Soferim  until  about  200  b.  c, 
assuming  that  the  Simon  mentioned  in  Abot  as  '  one  of  the  last  survivors 
of  the  Great  Synagogue'  is  Simon  II,  the  son  of  Onias  II.  Krochmal 
therefore  designates  him  as  the  last  of  the  Soferim  and  the  first  of  the 
Mishnah  teachers,  the  Tannaim  (Joe.  cit.,  p.  166).  According  to  Frankel, 
the  last  member  of  the  Great  Synagogue  was  Simon  the  Just  I,  about  300  b.  c. 
This  Simon,  then,  was  the  last  of  the  Soferim  in  whose  days  the  Mishnah 
was  introduced  {Hodegeiica,  pp.  68  and  30-31). 


MIDRASH    AND    MISHNAH  I7 

mechanical  memorizing — a  very  tiresome  and  repulsive 
procedure  for  the  intelligent  student.  In  the  third  place, 
the  Pentateuch  gives  the  laws  pertaining  to  one  subject  in 
many  different  places.  As  the  Midrash  follows  the  Penta- 
teuchal  order,  there  could  be  no  systematic  presentation  of 
all  the  laws  on  any  one  subject.  The  laws  on  one  subject, 
for  instance.  Sabbath,  being  derived  from  widely  separated 
passages  in  the  Pentateuch,  had  to  be  taught  piecemeal, 
each  decision  in  connexion  with  its  scriptural  basis.  For 
all  these  reasons,  Frankel  tells  us,  the  last  group  of  the 
Soferim  decided  to  separate  the  Halakot  from  their 
scriptural  bases  and  to  teach  them  in  the  new  Mishnah- 
form  systematically  arranged  according  to  subjects. 

Like  Hoffmann,  Frankel  assumes  that  the  plan  of 
arranging  the  Halakot  according  to  subject-matter  was 
coincident  with  the  very  introduction  of  the  Mishnah-form, 
so  that  the  very  earliest  Mishnah  collections  must  have 
been  arranged  topically.  This,  as  we  have  seen,  is  in- 
correct. The  topical  arrangement  of  the  Mishnah  is  of 
later  date.  It  was  preceded  by  other  forms  of  grouping 
peculiar  to  the  earlier  Mishnah  collections.  Frankel  him- 
self credits  R.  Akiba  with  the  systematic  arrangement  of 
Halakah  according  to  topics  {op.  cit.,  p.  115).  He  also 
qualifies  by  the  following  remarks  his  former  statement 
concerning  the  Soferim  and  their  arrangement  of  the 
Halakah  according  to  subjects  :  '  We  have  stated  in  the 
preceding  chapter  that  the  teaching  [of  the  Halakah] 
according  to  subjects  began  at  the  end  of  the  period  of 
the  Soferim.  Nevertheless,  a  long  time  undoubtedly 
passed  before  all  [the  Halakot]  that  belonged  to  one 
subject  were  brought  together  under  one  heading.  Very 
often  while  dealing  with  one  subject  they  would  [not  keep 
L.  C 


l8  MIDRASH    AND    MISHNAH 

Strictly  to  it  but]  drift  to  another  and  pass  from  one 
halakic  theme  to  another  .  .  .  .  R.  Akiba,  however,  began 
to  arranf:je  the  old  Halakot  to  put  each  in  its  proper  place 
and  [under  the  topic]  to  which  it  belonged.'  ^"^  If,  however, 
the  order  in  the  IMishnah  before  R.  Akiba  was  not  strictly 
according  to  subjects,  as  Frankcl  here  admits,  and  if  some 
Halakot  bearing  on  one  subject  would  often  be  treated 
among  Halakot  dealing  with  another  subject,  what  ad- 
vantage was  there  then  in  separating  the  Halakot  from  the 
Midrash  and  teaching  them  in  the  Mishnah-form  ?  The 
shortcomings  of  the  Midrash-form,  according  to  Frankel, 
consisted  in  the  fact  that  the  Halakot  of  one  subject  could 
not  be  taught  connectedly  but  were  interrupted  by  Halakot 
belonging  to  another  subject.  However,  according  to 
Frankel's  own  statement,  the  same  defect  was  inherent 
in  the  Mishnah-form  up  to  the  time  of  Akiba. 

Taking  up  another  statement  of  Frankel,  it  seems 
difficult  to  realize  why  the  study  of  the  written  laws 
together  with  all  the  Halakot  derived  from  them,  as  is 
done  in  the  Midrash-form,  should  be  such  dry  mechanical 
work  of  the  memory,  and  so  repulsive  to  the  intelligent 
student.  One  would  be  inclined  to  think  that  the  study 
of  the  Halakot  in  the  abstract  Mishnah-form,  especially 
when  not  arranged  systematically,  would  indeed  be  a  far 
more  mechanical  work  and  far  more  tiresome  for  the 
student.  Again,  according  to  Frankel,  it  was  the  alleged 
lack  of  inner  logical  connexion  between  the  single  Halakot 

^°  pjiD  ij^nnn  D'-J'-^yn  3"y  ivz^bn  OTipn  piDn  ijnn^  "ins  njni 
n'^y^'cn  ^3  12DX3  dio  am  wc'  nny  pso  "Tibn  bin  .onaiDn  ■•d* 
13'l;'C3  n\  pjyn  cpoyn  o^cys  nnini  ^nns*  b:i  nnn  nns  p^y  ba 
bv  n)yc"n  nia^nn  mob  bm  y"m  .  .  ,  n^bnb  na^nDi  pjy^  pjya 

.0^321   p"i:iD 


MIDRASH    AND    MISHNAH  I9 

which  made  the  Mid  rash- form  inadequate  for  teaching 
purposes.  However,  this  absence  of  inner  logical  connexion 
is  merely  alleged  by  Frankel,  but  not  proved.  If  we  should 
even  grant  that  in  the  I\I  id  rash- form  the  Halakot  were  not 
always  logically  connected  and  coherently  presented,  the 
earlier  Mishnah  certainly  did  not  remedy  this  evil.  Tiie 
earlier  Mishnah  collections  were  characterized  by  the  most 
arbitrary  modes  of  arrangement.  Halakot  bearing  upon 
different  themes  and  altogether  unrelated  in  subject-matter 
were  often  grouped  together  under  artificial  formulas. 
Examples  of  these  earlier  modes  of  arrangement  have  been 
preserved  even  in  the  present  form  of  our  Mishnah  as 
for  instance,  in  the  so-called  Number-Mishnahs  or  the 
En-ben-Mishnahs.  The  Midrash-form  certainly  established 
a  better  connexion  between  the  individual  Halakot  than 
did  these  earlier  arrangements  of  the  Mishnah.  The  mere 
fact  that  many  Halakot  belong  to  one  and  the  same 
chapter  or  are  grouped  around  one  and  the  same  passage 
of  the  Scriptures,  establishes  a  better  connexion  between 
them  than  the  accident  that  they  can  all  be  presented 
under  one  formula. 

Aside  from  all  these  arguments,  the  fundamental  position 
of  Frankel  can  hardly  be  maintained.  In  the  time  of  the 
last  group  of  the  Soferim,  the  halakic  material  could  not 
have  grown  to  such  an  extent  as  to  make  it  impossible 
to  use  the  Midrash-form  and  necessitate  the  innovation  of 
a  new  form  of  teaching.  The  mere  volume  of  the  halakic 
material  could  by  no  means  have  brought  about  this  change 
of  form.  This  is  evident  from  the  fact  that  our  halakic 
Midrashim,  Sifra,  Sifre,  and  Mekilta,  present  in  Midrash- 
form  a  mass  of  halakic  material  far  greater  in  volume 
than  was  extant  in  the  da)-s  of  the  Soferim.     Thus  we  see 

C  3 


20  MIDRASH    AND    MISHNAH 

that  all  the  reasons  which  Frankel  gives  for  the  introduction 
of  the  Mishnah-form  are  insufficient  and  could  not  have 
been  the  cause  of  the  innovation. 

In  conclusion,  Frankel's  admission  that  the  teachers 
continued  to  use  the  Midrash-form  even  after  the  intro- 
duction of  the  Mishnah-form  ^^  is  the  strongest  refutation 
of  his  own  theory.  If  the  Midrash-form  had  so  many 
disadvantages,  if  it  was  both  tiresome  for  the  student  and 
inadequate  for  presenting  the  Halakot  systematically,  why 
was  it  not  altogether  abandoned  ?  How  did  the  new  form 
obviate  the  evils  of  the  old  form  if  the  latter  continued 
in  use? 

The  theory  propounded  by  Weiss  in  his  Mabo  la-Mekilta, 
pp.  iv  and  v,  and  in  his  Dor,  I,  p.  (i6,  is  somewhat  of  an 
improvement  upon  the  ideas  of  Frankel.     Like  Frankel,  he 
believes  that  the  Mishnah-form  was  introduced  by  the  later 
Soferim,  and  that  the  reason  for  this  change  was  the  large 
increase    of    halakic     material.      He    avoids   two   of  the 
mistakes  that  Frankel  made.     In  the  first  place,  he  does 
not  confuse  the  innovation  of  teaching  detached  Halakot 
in   the   form    of  Mishnah  with  the    arrangement    of   the 
latter   according   to   subjects.     Nor  does  he  assume   that 
the    Midrash-form  continued    in   use,  after   the    Mishnah- 
form  was  introduced.     According  to  Weiss,  the  Midrash- 
form  was  abandoned   because   it    proved    inadequate.     It 
was   hard   for  the  student  to  remember   the   great    mass 
of    Halakot    that    existed    at    that    time,    when    taught 
in  the   Midrash-form.     The   teachers,   therefore,   felt    the 
need   of  inventing   another   form   which  would   help   the 

2'  Op.  cit.,  p.  7,  he  says :  p:y3  DDi'V^  i"n  nrh  nn'^nti'  ^in  o  i?ni 


MIDRASH    AND     MISHNAH  21 

memory  retain  the  increased  number  of  halakic  teachings. 
This  help  for  the  memory  they  found  in  separating  the 
Halakot  from  their  scriptural  bases  and  in  expressing  them 
in  short,  concise  phraseoloG^y,  and  in  arranging  them 
according  to  a  number-formula.  The  saying  of  Simon 
the  Just,  '  The  world  rests  upon  tJiree  things,  &c.'  (Abot 
I,  2),  and  the  three  Halakot  mentioned  in  Eduyot  VIII,  4, 
which  according  to  Weiss  are  soferic  Halakot,  merely 
reported  by  Jose  ben  Joezer,  are  cited  by  Weiss  in  support 
of  his  theory  that  the  Soferim  taught  detached  Halakot 
expressed  in  concise  terms  and  arranged  according  to 
number  formulas.  Weiss  {Mabo  la-Mekilta,  p.  v,  note  7) 
admits,  however,  that  the  innovation  was  unsuccessful. 
The  teachers,  he  tells  us,  soon  found  that  the  Mishnah- 
form.  although  superior  to  the  Midrash,  in  being  more 
easily  memorized,  had  many  other  disadvantages.  As 
a  result,  they  had  to  return  to  the  older  form  of  the 
Midrash  after  they  had  abandoned  it  for  a  time.-^ 

This  admission  of  Weiss  that  the  advantages  expected 

22  In  this  assumption,  that  the  Midrash-form  had  for  a  long  time  been 
abandoned  and  supplanted  by  the  Mishnah,  and  that  later  on  objections 
to  the  Mishnah-form  caused  a  return  to  the  Midrash,  Weiss  is  followed 
by  Oppenheim  (' Ha-Zuggot  we-ha-Eshkolot '  in  Has/ia/iar,Vll,  pp.  114  and 
116),  and  by  Bassfreund  (see  above,  note  15).  It  is  strange  that  while  these 
scholars  cannot  account  satisfactorily  for  one  change  that  really  took  place, 
namel}',  from  the  exclusive  use  of  the  Midrash  to  the  admission  of  the 
Mishnah-form,  they  assume  another  change  which  never  took  place,  namely, 
a  return  from  a  supposed  temporary  exclusive  use  of  the  Mishnah  to  the 
old  Midrash.  We  have  already  seen  that  the  Mishnah-form  was  never  in 
exclusive  use,  for  the  Midrash  continued  to  be  used  side  b}^  side  with  it. 
Consequently  there  could  have  been  no  return  from  Mishnah  to  Midrash. 
But  we  shall  see  that  the  very  reason  which  Weiss,  Oppenheim,  and 
Bassfreund  give  for  the  return  to  the  Midrash,  namely,  the  opposition 
of  the  Sadducees,  was  rather  the  cause  for  the  further  departure  from  the 
Midrash-form  and  the  extension  of  the  use  of  the  Mishnah-form  (see  below, 
notes  72  and  73). 


22  MIDRASH    AND    MISHNAH 

from  the  new  form  were  not  realized,  is  in  itself  a  strong 
argument  against  his  theory.  Further,  we  have  seen  above 
that  the  necessity  for  aiding  the  memory  could  not  have 
been  the  reason  for  introducing  the  Mishnah-form.  The 
words  of  the  scriptural  text  with  which  the  Halakot  were 
connected  in  the  Midrash-form  offered  sufficient  help  to 
the  memory.  We  have  also  seen  above  that  in  the  days 
of  the  Soferim  the  halakic  material  was  not  so  large  as  to 
necessitate  new  forms  and  arrangements.  The  Soferim 
never  gave  their  teachings  in  any  other  form  but  in  the 
Midrash,  namely,  as  interpretations  and  additions  to  the 
written  laws.  They  never  arranged  them  in  any  other  way 
except  in  the  order  of  the  scriptural  passages  to  which 
they  belonged.  The  two  passages,  cited  by  Weiss,  do 
not  refute  this  statement.  The  saying  of  Simon  the  Just 
in  Abot  is  not  a  halakic  teaching  but  a  maxim  of  the 
same  character  as  the  other  wisdom  literature  of  that  time. 
We  can  draw  no  conclusions  from  it  as  to  the  form  of 
halakic  teachings  of  that  day.  As  for  the  three  Halakot 
mentioned  in  Eduyot,  these  will  later  be  shown  to  have 
been  the  decisions  of  Jose  ben  Joezer  himself.  Conse- 
quently they  do  not  prove  anything  concerning  the  form 
of  halakic  teaching  used  by  the  Soferim. 

Oppenheim  ^^  offers  a  theory  that  is  in  reality  but 
a  combination  of  the  views  examined  above.  However, 
he  makes  a  very  correct  observation  concerning  the  date 
of  the  innovation.  According  to  Oppenheim,  the  Mishnah- 
form  was  first  introduced  during  or  immediately  after  the 
Maccabean  uprising.  As  a  result  of  the  persecutions 
incident   to    the  Maccabean   revolution,  the  study  of  the 

"  'Tol^dot  Ha-Mishnah'  in  Belh  Talmud,  II,  p.  145,  and  also  in  his 
'  Ha-Zuggot  we-ha-Eshkolot'  in  Hashaliar,  VII,  pp.  1 14-15. 


MIDRASH    AND    MISHNAH  23 

law  was  neglected  and  the  knowledge  of  it  decreased. 
The  teachers,  therefore,  decided  to  sej^arate  the  Halakot 
from  their  scriptural  bases  and  to  teach  them  indepen- 
dently, in  order  to  save  them  from  oblivion  ('  Toledot  ha- 
Mishnah ',  in  BetJi  Talnmd,  II,  p.  145).  They  chose  this 
form  either  because  they  thought  that  in  this  form  it 
would  be  easier  for  the  student  to  remember  the  Halakot, 
or  because  they,  the  teachers  themselves,  no  longer 
remembered  the  scriptural  bases  for  many  Halakot. 

The  first  of  these  two  reasons  is  identical  with  the  one 
given  by  Frankel  and  by  Weiss,  which  has  been  found 
insufficient.  The  second  one  is  similar  to  the  one  given 
in  Hoffmann's  second  theory,  and,  as  we  have  seen,  is 
not  plausible.  For,  if  they  had  not  previously  studied 
Mishnah  but  received  the  Halakot  only  together  with 
their  scriptural  bases,  it  is  hardly  possible  that  the 
teachers  could  forget  the  latter  and  yet  remember  the 
former.  The  remembered  Halakot  would  have  recalled 
to  them  the  scriptural  passages  in  connexion  with  which 
they  were  received. 

It  seems  that  Oppenheim  himself  felt  that  neither  his 
own  nor  Frankel's  nor  Weiss's  theory  was  sufficient  to  solve 
the  problem.  He  therefore  offered  another  solution  of  the 
problem,  and  this  is  practically  a  denial  of  the  fact  that 
there  is  a  problem.  After  stating  that  the  Soferim  taught 
in  the  Midrash-form  and  those  who  followed  them  intro- 
duced the  new  form  of  abstract  Halakot,  that  is  Mishnah, 
he  contradicts  himself  by  adding  the  following  remark:-* 
'  But  in  my  opinion  there  is  no  doubt  that  the  Soferim  who 
taught  [the  Halakah]  as  a  commentary  on  the  Scriptures 

m"-  "in-'in   n"?   ma^nn   |0  'Ha-Zuggot  we-ha-Eshkolot',  I.e.,  p.  114. 


24  MIDRASH    AND    MISHNAH 

[i.e.  Midrash]  also  taught  independent  Halakot.'  He  then 
proceeds  to  prove  that  the  Soferim  had  independent  or 
abstract  Halakot  in  the  form  of  Mishnah.^^  According  to 
this  statement  there  is  no  problem  at  all.  We  need  not 
account  for  any  change  in  the  form  of  teaching  Halakah  or 
explain  the  reasons  for  the  innovation  of  the  Mishnah,  for 
there  was  no  change  and  no  innovation.  The  two  forms, 
Midrash  and  Mishnah,  were  evidently  used  together  from 
the  earliest  times,  the  Midrash  possibly  to  a  larger  extent 
than  the  Mishnah.  This  would  indeed  be  the  best  solution 
of  the  problem  and  would  remove  all  difficulties.  The  only 
obstacle  in  the  way  of  its  adoption  is  that  it  is  contradicted 
by  all  historic  reports.  It  is  against  the  tradition  that  in 
earlier  times  all  the  teachings  of  the  Halakah  were  given 
in  the  Midrash-form  only.  This  tradition,  we  have  seen, 
is  indicated  in  the  discussion  of  Jose  and  Hezekiah  men- 
tioned in  the  Palestinian  Talmud  (Moed  katan)  and  is 
expressly  mentioned  by  Sherira  Gaon.  It  is  also  out  of 
harmony   with    the    generally  accepted    opinion    that    the 

25  This  is  also  the  stand  taken  by  Halevi  who  goes  even  further  and 
maintains  {Doroili  ha-Rishonim,  I,  chap,  xiv,  pp.  204  ff.)  that  in  the  main 
our  Mishnah  had  already  been  composed  and  arranged  by  the  Soferim,  but 
he  does  not  prove  his  statements.  At  the  most,  his  arguments  could  only 
prove  that  there  had  been  many  HalaUot  and  decisions  in  the  days  of  the 
Soferim,  and  that  the  earliest  Tannaim  in  our  Mishnah  in  their  discussions 
seek  to  define  and  explain  these  older  Halakot  and  decisions.  But  it  does 
not  follow  that  these  Halakot  and  decisions  were  already  in  the  days  of  the 
Soferim  composed  in  the  Mishnah-form.  These  Halakot  and  decisions  were 
originally  given  in  the  Midrash-form,  as  definitions  or  interpretations  of 
written  laws.  The  later  teachers,  that  is,  the  earlier  Tannaim,  discussed 
and  commented  upon  these  decisions  and  Halakot  of  their  predecessors 
which  they  had  before  them  in  Midrash-form.  Later  on,  when  these  decisions 
and  Halakot  became  separated  from  the  Midrash,  the3'  were  arranged  in 
the  Mishnah-collections  as  independent  Halakot,  together  with  all  the 
comments  and  explanations  given  to  them  by  the  Tannaim,  and  in  this  form 
they  are  also  found  contained  in  our  Mishnah. 


MIDRASH    AND    MISHNAH  2$ 

Soferirri;  as  the  name  implies,  imparted  all  their  teachings 
only  in  connexion  with  the  written  book  of  the  Law.  It 
is,  further,  against  an  absolutely  reliable  report  in  the 
Babylonian  Talmud  which,  as  we  shall  see,  tells  us  not 
only  that  the  older  form  of  teaching  the  Halakah  was  the 
Midrash,  but  also  gives  us  the  period  of  time  during  which 
it  was  in  exclusive  use. 

Thus  we  see  that  all  these  theories  examined  above  have 
not  succeeded  in  finding  a  real  solution  for  our  problem. 
None  of  the  theories  have  given  the  exact  time  or  the  real 
cause  for  the  introduction  of  the  Mishnah-form. 

Probably  the  strangest  feature  of  the  problem  is  the 
silence  of  the  talmudic  literature  about  this  important 
innovation.  This  silence  is  all  the  more  remarkable  when 
we  come  to  realize  that  this  was  not  merely  a  change  in 
form,  but  an  innovation  that  had  great  influence  upon  the 
development  of  the  Halakah  and  had  great  bearing  upon 
the  validity  of  its  authority. 

The  theory  proposed  in  this  essay  offers  what  appears 
to  us  to  be  a  satisfactory  solution  for  this  many-sided 
problem.  In  the  first  place  it  determines  the  exact  time 
when  the  innovation  of  teaching  independent  Halakot  was 
introduced.  In  the  second  place  it  describes  the  conditions 
that  compelled  the  teachers  to  make  so  radical  a  change. 
And  finally  it  explains  why  no  explicit  report  is  preserved 
in  talmudic  sources  regarding  this  great  development  in 
the  teachings  of  the  Halakah.  This  theory  I  shall  now 
propound. 


II 


We  have  seen  above  that  the  name  '  Soferim  '  designates 
a  class  of  people  who  occupied  themselves  with  '  the  Book ' 
and  taught  from  that  '  Book '  alone.  This  name  has  been 
applied  to  the  earliest  teachers  of  the  Halakah,  because 
they  imparted  all  their  teachings  in  connexion  with  the 
Book  of  the  Law,  either  as  an  exposition  of  it  or  as  a 
commentary  on  it,  that  is  to  say  in  the  form  of  the 
Midrash.  This,  we  have  seen,  is  asserted  by  tradition  and 
agreed  upon  by  almost  all  the  modern  scholars.  There  is 
absolutely  no  reason  for  assuming  that  any  of  the  teachers 
belonging  to  the  group  of  the  Soferim,  whether  the  earlier 
or  later,  departed  from  this  peculiar  method  of  teaching. 
For  the  name  Soferim  was  given  to  the  teachers  because 
of  this  method  of  teaching  and  continued  in  use  only 
as  long  as  they  adhered  exclusively  to  this  method.  As 
soon  as  the  teachers  ceased  to  occupy  themselves  exclu- 
sively with  the  Book  of  the  Law  and  its  exposition  and 
began  to  teach  abstract  Halakot  also,  the  name  applied 
to  them  was  no  longer  Soferim  but  '  Shone  Halakot '  or 
Tannaim  (see  especially  J.  Briill,  Mcbo  ha-MishnaJi,  Frank- 
furt a.  M.,  1876,  II,  p.  2).     The  haggadic  saying  of  Rabbi 


MIDRASH    AND    MISHNAII  27 

Abahu^*"'  (in  Ycrushalmi  Shekalim  V,  i.  48  c)  which  Weiss 
and  Oppenhcim  cite  as  a  proof  of  their  contention  that  the 
Soferim  taught  abstract  Halakot  in  the  Mishnah-form,  does 
not  refer  to  the  Soferim  at  all.  It  does  not  say  anything 
about  their  methods  or  form  of  teaching.  It  refers  to  the 
Kenites,  who  in  i  Chronicles  2.  ^^  ^^^  identified  with  the 
families  of  Soferim,  the  inhabitants  of  Yabez,  the  Tir'atim, 
the  Shim'atim,  and  Sukatim.  In  all  these  names  the 
Haggadah  seeks  to  find  attributes  for  the  Kenites,  indi- 
cating some  of  their  peculiar  characteristics.  R.  Abahu 
here  gives  an  haggadic  interpretation  of  the  name  Soferim 
applied  to  the  Kenites  in  the  same  fanciful  manner  as  the 
other  names,  Tir'atim,  Shim'atim,  and  Sukatim  are  inter- 
preted in  Sifre,  Numbers  78  (Friedmann  20  a). 

Oppenheim  advances  still  another  argument  to  prove 
that  the  Soferim  taught  abstract  Halakot.  Since  many  of 
the  traditional  laws  designated  as  ''J''D?3  nro^  n3^n  must 
have  been  transmitted  by  the  Soferim,  it  follows  (so 
Oppenheim)  that  the  Soferim  taught  independent  tra- 
ditional laws  in  Mishnah-form.  This  is  not  at  all 
convincing.  Granted  that  there  were  such  unwritten 
laws  handed  down  from  Moses  to  the  Soferim,  and  that 
these  formed  part  of  their  religious  teachings,  it  does 
not    necessarily    follow    that    these    traditional    teachings 

"^  The  passage  in  p.  Shekalim  reads  as  follows  :  ^Tl^    in2X    '1    1't2ii 

'131   nbra  D'^n^'n  cnm  ntrrn  lonn''  i6  'n   nmsD  nini2D  niinn 

Weiss  (Dor,  I,  p.  66)  refers  to  this  saying  in  the  words  :  P3"!  "I'J'N  U'^LDni 

nniDD  nmnn  ns  ic^y   Dnsion-j'  (D'-^p*:-*  '::'it)  niD^nn  VD^n  nu, 

and  Oppenheim  {H<is/ia/iar,  Vll,  p.  114)  states:   In^S  '"1    "ICN    M^^L*'n^ai 

'131  i»nn''  ab  'n  |i:3  nniDD  niinn  nx  ic'j;::'  ^2^  onsiD  ;niN*  \>-\)p  vn^. 

Both  of  them  erroneously  take  this  haggadic  sajing  as  a  characterization 
of  the  methods  of  the  Soferim  and  as  a  reason  for  their  name. 


28  MIDRASH    AND    MISHNAH 

were  given  in  the  Mishnah-form.  They  could  as  well 
have  been  given  as  additional  laws  in  the  Midrash-form, 
together  with  the  scriptural  passages  with  which  they 
had  some  sort  of  relation,  though  not  based  on  or  derived 
from  them.^^  It  is  therefore  absolutely  certain  that  the 
change  in  the  form  from  Midrash  to  Mishnah  was  not 
made  during  the  period  of  the  Soferim. 

The  period  of  the  Soferim  came  to  an  end  with  Simon 
the  Just  I  about  300-270  B.C.  In  Abot  i,  2  he  is  desig- 
nated as  being  '  of  the  last  survivors  of  the  men  of  the 
great  Synagogue ',  which  means  that  he  was  the  last  of 
the  Soferim.  During  the  time  of  this  Simon  the  Just  I, 
who  still  belonged  to  the  Soferim,  there  could  have  been 
no  Mishnah.  We  have,  therefore,  to  look  for  the  origin 
of  the  Mishnah-form  in  the  times  after  Simon  I,  that  is, 
after  270  B.C.  We  have  thus  gained  at  least  this  much. 
We  have  fixed  the  terminus  a  quo,  the  beginning  of  the 
period  during  which  the  innovation  of  the  Mishnah-form 
could  have  been  made.  We  have  now  to  find  the  terminus 
ad  quern,  namely,  the  last  possible  date  for  the  introduction. 
In  seeking  to  determine  this  latter  date,  the  only  proper 
way  would  be  to  find  the  oldest  authentic  Halakah  men- 
tioned in  talmudic  literature  without  its  scriptural  proof, 
that  is,  in  the  Mishnah-form.    In  determining  the  date  when 

^'^  If,  for  instance,  the  regulations  about  the  colour  of  the  thongs  and 
the  form  of  the  knot  of  the  ph^-lacteries  were  traditional  laws  given  to  Moses 
on  Sinai,  DfO^cb'Tl,  as  is  claimed  by  some  of  the  Rabbis  of  the  Talmud 
(Mena'not  35  a,b),  these  could  have  been  nevertheless  taught  together  with 
the  passage  in  Deut.  6.  8.  The  teachers  could  have  stated  that  the  com- 
mandment'and  thou  shalt  bind  them'  is  explained  by  tradition  to  mean, 
first,  to  tie  them  only  with  black  thongs,  nnilT.i'  myiifl;  and  second,  that 
the  phj'lacteries  must  be  square,  niV31"l?D  ;  also  that  the  knot  must  be  of 
a  certain  shape;  and  lastly,  that  the  letter  Shin,  ti',  must  be  impressed  on 
the  outside,  &c.,  tSfc. 


MIDRASH    AND    MISHNAH  29 

such  a  Halakah  was  given,  we  shall  eo  ipso  have  deter- 
mined the  date  when  the  change  in  the  form  had  already 
been  made  and  the  Mishnah-form  was  already  in  use. 
This  seems  to  be  the  simplest  and  only  logical  method 
of  procedure.  Strange  as  it  may  seem,  this  method  has 
not  been  followed  by  any  of  the  scholars  who  have 
attempted  to  solve  our  problem. 

The  first  teacher  in  whose  name  we  have  independent 
Halakot  is  Jose  b.  Joezer,'^^  who  died  about  165  b.  C.^^ 
The  sayings  of  Simon  the  Just  and  Antigonos  (Abot  1, 
2,  and  3)  are  merely  wisdom  maxims  and  not  halakic 
teachings.  Connected  with  the  name  of  Jose,  however, 
we  have  three  halakic  decisions  mentioned  without  any 
scriptural  proof,  i.e.  in  Mishnah-form  (Mishnah  Eduyot 
VIII,  4).  The  authenticity  of  these  Halakot  is  not  to  be 
doubted.     They  are  certainly  decisions  given  by  Jose  ben 

28  Frankel's  statement,  "1N3  DJitT  ^V  "IC'N  D'^IK^Sin  DH  \SD"L:n  h\>T\  ""3 
ND^nam  r\VZ')Sl  nO^n,  that '  Hillel  and  Shammai  were  the  first  teachers  in 
whose  name  Halakot  are  mentioned  in  the  Mishnah  and  Baraita '  {Hodegetica, 
p.  38)  is,  to  say  the  least,  surprising.  We  find  Halakot  fi"om  all  the  four 
preceding  Zuggot.  Thus  a  Halakah  is  mentioned  in  the  name  of  Shemaiah 
and  Abtalion  concerning  the  quantity  of  '  drawn  water'  (D^^ISu'  D^?0)  that 
is  sufficient  to  disqualify  the  Mikwah  (Eduyot  I,  3),  not  to  mention  the 
Halakot  in  regard  to  the  slaughtering  of  the  passover  sacrifice  on  sabbath 
which  Hillel  is  said  to  have  received  from  them  and  taught  in  their  name 
(p.  Pesahim  33  a  and  b.  Pesahim  66a).  Simon  b.  Shetah  mentions  a  law 
in  the  name  of  the  D^?03n  in  regard  to  the  punishment  of  false  witnesses 
(Makkot  5  b).  From  Joshua  b.  Perahia  we  have  a  Halakah  in  regard  to 
wheat  brought  from  Alexandria  (Tosefta  Makshirin  HI,  4),  and  in  the  name 
of  Jose  b.  Joezer  we  have  the  three  Halakot  (M.  Eduyot  VHI,  4). 

29  The  date  of  Jose's  death  can  only  be  approximated.  He  died  when 
Alcimus  was  still  in  power  (see  Genesis  r.  LXV,  22).  Probably  he  was 
among  the  sixty  men  whom  the  Syrian  general  Bacchides  killed  at  the 
instigation  of  Alcimus  ^i  Mac,  7.  16).  Alcimus  died  160  b,  c.  (see  Buchlcr 
in  \.he  Jewish  Encyclopaedia,  I,  332-3'. 


30  MIDRASH    AND    MISHNAH 

Joezer.^*^  In  the  form  in  which  they  are  preserved  they 
have  already  been  taught  by  his  colleagues  or  disciples. 
Thus  we  find  that  in  the  last  days  of  Jose  b.  Joezer  or  soon 

^"■Jose  b.  Joezer's  authorship  of  these  Halakot  was  first  questioned  by 
Dr.  Jacob  Levy  in  Osar  Nehmad,  III,  p.  29.  In  the  course  of  his  discussion, 
however,  Levy  arrives  at  the  conclusion  that  these  Halakot  were  really 
given  by  Jose  b.  Joezer  of  Zeredah.  Following  Levy's  first  suggestion, 
Graetz  {Moiiaissclirift,  1869.  pp.  30-31)  and  after  him  Buchler  {Die  Priester 
iind  dcr  Cidtus,  p.  63)  assume  that  these  three  Halakot  belong  to  some  later 
teacher  whose  name  was  likewise  Jose  b.  Joezer,  although  such  a  teacher 
is  other^vise  not  known.  There  is,  however,  no  necessity  for  seeking  any 
other  author  than  the  well-known  Jose  b.  Joezer  of  Zeredah  who  is  expressly 
mentioned  in  our  sources.  The  fancied  difficulties  of  ascribing  the  decisions 
to  Jose  b.  Joezer  of  Zeredah  disappear  on  close  examination.  The  main 
difficulty  is  said  to  be  the  difference  in  time  between  the  date  of  Jose  and 
the  date  of  the  Eduyot-collection.  How  could  Jose  b.  Joezer  of  Zeredah, 
who  died  before  160  b.  c,  have  testified  before  the  teachers  in  Jabneh  about 
100  c.  E.  on  that  memorable  day  when  Gamaliel  II  was  deposed  from  the 
presidencj',  and  when  according  to  a  talmudic  report  Berakot  27  b)  the 
Eduyot-collection  was  arranged  ?  Were  this  a  real  difficulty,  it  could  easily 
be  removed  by  assuming  with  Levy  {op.  cit.,  p.  36)  that  the  word  DIC'D 
'in  the  name  of  was  left  out  in  our  Mishnah,  and  that  the  text  ought  to 
read  Hini*  L""'N'  liyi''  p  ""Dli  '•m  DI-'O  T'yn  'A  teacher  testified  in  the 
name  of  Jose  b.  Joezer  of  Zeredah '.  However,  no  real  difficulty  exists. 
The  theory  that  all  of  the  Halakot  contained  in  our  Eduyot-collection  are 
testimonies  that  were  deposed  before  the  teachers  at  the  assembly  at  Jabneh, 
cannot  be  maintained.  Our  Eduyot-collection  contains  other  Halakot  than 
those  testified  to  before  the  assembly  at  Jabneh.  It  contains  also  Halakot 
that  were  not  even  discussed  at  that  assembly.  To  the  latter  class  belong 
the  three  Halakot  of  Jose  b.  Joezer  (see  H.  Klueger,  Ueber  Genesis  und 
Composition  dcr  Halakoth-Sammlung  Eduyoth,  Breslau,  1895).  It  is  not 
necessary  to  assume,  as  Klueger  (/.  c,  p.  84)  does,  that  these  decisions  had 
been  found  in  written  form  in  the  archives.  These  Halakot  were  simply 
known  to  the  teachers  just  as  the  other  sayings  and  teachings  of  the  Zuggot 
were  known  to  them.  They  had  been  transmitted  orally  and  studied  by 
heart,  and  at  the  time  when  the  Eduyot-collection  was  composed  or  redacted, 
these  three  Halakot  were  incorporated  in  it.  Compare  also  Hoffmann  in 
his  commentary  on  Mishnah  Eduyot,  ad  lac. 

The  other  difficulties  in  these  three  Halakot  will  be  considered  later 
in  the  course  of  this  essay,  when  we  come  to  the  discussion  of  the  Halakot 
themselves. 


MIDRASH    AND    MISHNAH  3I 

after  his  death  some  Halakot  were  ah'eady  taught  without 
any  scriptural  proof,  that  is,  in  the  Mishnah-form.  Ac- 
cordingly we  have  found  the  terminus  ad  qiieni  for  the 
innovation  of  the  Mishnah-form. 

Wc  now  pass  to  a  consideration  of  the  particular  point 
of  time  in  this  period  when  the  new  form  was  introduced. 
We  have  good  reasons  for  believing  that  these  decisions 
of   Jose   are    not    only    the    first    mentioned,    but    in    all 
likelihood  the  first  ever  taught  in  Mishnah-form.     Indeed, 
a    reliable    report    in    the    Talmud,    as    well    as    certain 
indications    in    gaonic    traditions,  points   to   the  last  days 
of  Jose   as    the   time   when    the    change   in   the   form    of 
teaching    was    made.     This    talmudic    report   is   given   in 
Temurah  15  b  by  Samuel,  but  it  is  undoubtedly  an  older 
tradition   which    Samuel    merely   reported.      It    reads    as 
follows:  ^^^nnc'  ny  n-ii'n  niD-'O  ^nic'^!'  \rh  n?oi'c^  ni^is'i^x  ^3 
rn  N^  i^''xi  fs'^n  irm  ncns  min  pnci?  vn  nryr  p  •'dv  (?m»'') 
l^ni  nc'C3  niin  X'^rh  'AH  the  teachers  who  arose  in  Israel 
from  the  days  of  Moses  until  the  death,  or  the  last  days, 
of  Jose   b.  Joezer  studied   the  Torah  as    Moses  did,  but 
afterwards  they  did  not  study  the  Torah  as  Moses  did'. 
The  discussion  that  follows  in  the  Talmud  endeavours  to 
explain  the  meaning  of  this  report.     Here  w^e  learn  that 
the  report  was  not  understood  to  mean  that  the  teachers 
until  the  time  of  Jose's  death  were  in  possession  of  as  many 
laws   as   Moses   had.     Nor  was  it  understood  to  say  that 
they    were   all    of  one  opinion    and   had   no  doubtful   or 
disputed    Halakot.     The   report,  so   the   discussion   ends, 
can   only  be  understood  to  say  that  they  taught  in  the 

21  The  correction  suggested  by  Graetz  {Monatsschrift,  1869,  p.  23)  to  read 
■•DV  niJO''  iy  'till  the  days  of  Jose',  instead  of  ''Dl''  DD'J'  "ly  'till  Jose  died', 
is  very  plausible. 


32  MIDRASH    AND    MISHNAH 

same  manner  in   which   Moses  taught,   in?  ''"i''d:   "iin   "idto 

We  are  not  told  what  this  method  was  and  what  it 
means  to  study  or  teach  in  the  manner  of  Moses,  but  it 
is  evident  that  this  method  can  only  be  the  Midrash-form. 
To  give  all  the  Halakot  as  interpretation  of  the  written 
word  means  to  study  or  teach  like  Moses  did.  Assuming, 
as  the  Rabbis  did,  that  all  the  interpretations  given  in  the 
Midrash  are  correct  explanations  and  definitions  of  the 
written  Law,  all  the  teachings  given  in  the  Midrash-form 
were  really  contained  in  the  words  of  Moses.  And  Moses 
must  have  taught  them  in  the  same  manner  in  which  they 
are  taught  in  the  Midrash.  For  Moses  must  have  read  to 
the  people  the  written  laws  and  interpreted  the  full 
meaning  of  each  and  explained  each  passage  or  each 
word  of  the  Torah.  That  the  phrase  '  to  study  in  the 
manner  of  Moses '  is  used  to  indicate  the  Midrash-form, 
can  also  be  seen  from  another  passage  in  the  Babylonian 
Talmud.  In  Yebamot  72  b  we  read  that  Eleazar  b.  Pedat 
refuted  an  opinion  of  R.  Johanan  by  quoting  a  scriptural 
passage  and  giving  an  interpretation  to  it.  R.  Johanan, 
thinking  that  R.  Eleazar,  in  his  argument,  was  making 
use  of  an  original  interpretation,  characterizes  his  method 
in  these  words :  mn:n  ''D^D  ^.L^'D3  c'-im  nc^v::'  ms  p^  "•n-'sn 
'  I  see  that  the  son  of  Pedat  studies  in  the  manner  of 
Moses'.  Simon  b.  Lakish,  however,  informs  R.  Johanan 
that  this  argument  was  not  original  with  R.  Eleazar,  but 
was  taken  from  a  Midrash-Baraita  in  Torat  Kohanim,  as  it 
is  indeed  found  in  our  Sifra  (Tazria'  I,  Weiss  58  b).  We 
see,  thus,  that  to  study  or  teach  in  the  Midrash-form,  as  is 
done  in  our  Sifra,  is  characterized  as  being  '  in  the  manner 
of  Moses  '  {r\^J22  trim  a^rv).      The  report  in  Temurah  15  b, 


MIDRASH    AND    MISHNAH  33 

accordingly,  tells  us  that  until  the  death  or  the  last  days  of 
Jose  all  the  teachers  taught  in  the  Midrash-form,  which  is 
called  '  in  the  manner  of  Moses  '}^ 

This  seems  also  to  have  been  the  tradition  among  the 
Geonim,  though  for  reasons  of  their  own  they  did  not  care 
to  express  themselves  distinctly  about  this  question.     We 

S2  This  report  in  the  Tahnud  might  perhaps  be  confirmed  by  the  report 
about  the  religious  persecution  in  the  time  of  Antiochus  Epiphanes.  Among 
the  many  prohibitions  against  Jewish  religious  practices  devised  by  the 
Syrian  ruler  for  the  purpose  of  estranging  the  Jews  from  their  religion,  which 
are  mentioned  by  the  authors  of  the  Books  of  Maccabees  (i  Mace.  ch.  i,  and 
2  Mace.  ch.  6\  we  do  not  hear  of  any  special  prohibition  against  teaching 
the  Law,  as  was  the  case  in  the  Hadrianic  persecutions  (b.  Abodah  zarah 
I7b-i8a,  compare  Graetz,  Geschichte,  IV,  4.  pp.  1548".).  On  the  contrary, 
we  learn  from  the  saying  of  Jose  b.  Joezer,  who  lived  at  that  time,  that  no 
such  prohibition  was  enacted.  For  Jose  said,  '  Let  thy  house  be  a  meeting- 
place  for  the  wise  :  sit  amidst  the  dust  of  their  feet,  and  drink  their  words 
with  thirst '  (Abot  I,  4).  Evidently  the  wise  teachers  could  meet  unmolested 
in  private  places,  and  could  impart  their  religious  teachings.  Yet  there 
is  no  doubt  that  the  aim  and  the  tendencj'  of  the  Syrian  government  were 
to  suppress  the  religious  teachings  and  to  make  the  Jews  forget  their  Law. 
We  hear  that  the  Books  of  the  Law  were  rent  in  pieces  and  burned  with 
fire,  and  that  the  king's  command  was  that  those  people  with  whom  the 
Book  of  the  Law  would  be  found  should  be  put  to  death  (i  Mace.  i.  56-7  ; 
Josephus,  Antiquities,  XII,  3,  §  256).  Evidently  the  persecutors  believed 
that  to  burn  the  books  of  the  Law  and  to  punish  any  one  who  possessed 
them  was  sufficient  to  prevent  the  stud3'  of  the  Law%  This  was  a  very 
correct  surmise.  Since  all  teachings  were  given  in  the  Midrash-form, 
that  is,  as  an  exposition  and  explanation  of  the  Book  of  the  Law,  it  followed 
that  to  take  away  the  Books  of  the  Law  meant  to  effectually  prevent  any 
religious  instruction.  It  was  to  meet  this  peculiar  situation  that  Jose  uttered 
his  wise  saying.  Inasmuch  as  many  of  the  Books  of  the  Law  were  burnt, 
and  as  it  wasextremelj'  dangerous  to  use  those  that  had  been  secretly  saved, 
Jose  advised  the  people  to  make  every  home  a  place  where  the  wise  teachers 
might  meet,  and  where  one  might  listen  to  their  words  of  instruction  even 
without  books. 

These  peculiar  conditions  nia3'  in  some  degree  have  helped  to  accustom 
the  teachers  to  impart  religious  instruction  altogether  apart  from  the  Book 
of  the  Law,  namely  in  Mishnah-form. 

L.  D 


34  MIDRASH    AND    MISHNAH 

have  seen  above  that  Sherira,  in  describing  the  period 
during  which  the  Midrash-form  was  in  exclusive  use, 
employs  the  term  "y^  i::npj:)2  N"ip^yD,  but  does  not  define 
how  long  this  'earlier  period  of  the  second  Temple'  lasted. 
However,  we  shall  arrive  at  a  more  exact  interpretation  of 
this  vague  term  by  comparing  its  usage  in  a  responsum 
of  R.  Zemah  Gaon.  In  this  responsum  "^  the  following 
statement  occurs :  HM  DJID  L'Hpm  p'C'-ii*!  bai'C^  vny  nrj'ro  b 
n^n  DC'  )2  n'n  sbi  'AH  the  traditional  law  (nr^'D  is  here 
used  in  its  broader  sense)  which  they  used  to  teach  in 
the  Midrash-form,  p'l^nn  ViTlT,  in  the  time  of  the  Temple, 
was  anonymous,  and  no  individual  teacher  is  named  or 
connected  therewith'.  The  time  which  Zemah  Gaon  has 
in  mind  and  which  he  designates  as  ti'lpjon  cannot  include 
the  whole  period  of  the  second  Temple.  Many  names 
of  individual  teachers  living  in  the  time  of  the  second 
Temple  are  preserved  to  us  together  with  their  teachings, 
and  these  names  were  no  doubt  already  mentioned  in  the 
collections  of  Halakot  that  existed  in  Temple  times. 
R.  Zemah  Gaon  can  only  refer  to  the  time  before  Jose  b. 
Joezer,  when,  indeed,  no  individual  names  were  mentioned 
in   connexion  with  the  halakic  teachin"-s,  the  latter  beinsf 

33  This  responsum  is  quoted  by  Epstein  in  his  Eldad  ha-Datii,  pp.  7-8, 
and  more  fully  in  Jellinek's  Beth  Hamidrash^  II,  pp.  112-13.  We  shall 
discuss  it  in  detail  later  on  in  the  course  of  this  essay.  Zemah's  statement 
that  Eldad's  Talmud  followed  the  custom  of  old  when  they  taught  the 
Halakah  without  mentioning  the  names  of  individual  teachers,  finds  cor- 
roboration in  the  manner  in  which  the  halakic  teachings  as  quoted  by  Eldad 
were  introduced.  According  to  Eldad  all  the  halakic  teachings  were 
introduced  with  the  phrase  niin^H  '•DrD  H'J'D  ""E^D  yiCl.T'  "ir.:N.  This 
phrase,  like  the  phrases  n-»1j:n  "'DD  ntTOn  UnnV  3"l^"I''  and  HIID  pici^ 
13^21  \W0'2^  would  well  describe  the  older  Midrash-form,  in  which  all 
teachings  were  given  in  the  name  of  Moses,  i.e.  as  interpretations  of  the 
very  words  of  Moses. 


MIDRASH    AND    MISHNAH  35 

given  as  interpretations  of  the  Scripture  (p^nn  Vnc'),  that 
is,  in  the  Midrash-form.  It  is  most  probable  that  Sherira 
by  the  term  *L:nprD3  Nlp'^yj^  refers  to  the  same  period 
which  Zemah  Gaon  designates  as  cnpC3,  that  is,  to  the 
time  before  Jose  b.  Joezer.  We  can  therefore  reasonably 
conclude  that  the  new  form  of  teaching  the  Halakah,  i.e. 
Mishnah-form,  was  first  made  use  of  in  the  closing  days 
of  Jose  b.  Joezer.^'^ 

We  have,  now,  to  ascertain  the  reason  for  the  intro- 
duction of  a  new  form  of  teaching  the  Halakah  alongside 
of  the  older  form.  Having  fixed  the  time,  we  must  now 
inquire  into  the  conditions  of  that  time,  to  see  if  we  cannot 
find  in  them  the  reason  for  the  innovation.  An  examina- 
tion of  the  conditions  that  obtained  during  the  period 
under  consideration  reveals  the  fact  that  many  great 
changes  had  taken  place  in  the  life  of  the  Judean 
community.  We  notice  the  presence  of  various  new 
tendencies.  The  people's  outlook  upon  life  and  their 
regard  for  the  law  had  considerably  changed.  Even 
among  the  teachers  and  leaders  we  find  new  and  diver- 
gent attitudes  towards  the  Law  of  the  fathers  on  the  one 
hand  and  towards  the  new  ideas  and  tendencies  on  the 
other  hand.  All  these  changes  were  brought  about  by 
the  one  radical  change  in  the  political  condition  of  the 
people,  resulting  from  the  passing  of  Judea  from  Persian 

^*  It  is  perhaps  for  this  very  reason  that  the  teachers  until  the  time 
of  Jose  were  called  mbl^wS.  This  is  correctly  interpreted  by  Samuel 
in  the  Talmud  Temurah  15b  and  Sotah  47  b)  to  mean  13  p2iliy  ti"X,viz. 
that  each  man  spoke  only  the  opinion  of  the  whole  group  and  that  the  group 
spoke  for  each  man,  in  tlie  sense  that  the  teachers  acted  as  a  body,  not 
as  individuals.  The  report  that  the  Eshkolot  ceased  with  the  death  of 
Jose  b.  Joezer,  nlbnu'XH  )bl22  "IW  ]2  "•DV  nr^'ir^,  means  therefore 
that  this  concerted  action  of  the  teachers  ceased  with  Jose,  and  after  him 
they  began  to  mention  Halakot  in  the  name  of  individual  teachers. 


36  MIDRASH    AND    MISHNAH 

to  Greek  rule.  This  great  political  change  caused  the 
interruption  of  the  activity  of  the  Soferim  as  an  authori- 
tative body  of  teachers.  This  interruption  of  the  activity 
of  the  Soferim  which  was  coincident  with  the  death  of 
Simon,  the  last  member  of  that  body,  in  the  course  of  time 
led  to  a  departure  from  the  methods  of  the  Soferim  and 
necessitated  the  introduction  of  a  new  method  of  teaching 
the  Halakot,  namely,  the  Mishnah-form.  In  order  to 
prove  this,  we  must  first  review  the  conditions  that 
prevailed  in  the  time  of  the  Soferim  and  examine  the 
methods  of  the  Midrash  used  by  them. 

As  said  above,  the  Soferim  taught  the  people  only 
the  Book  of  the  Law,  niinn  idd,  with  such  interpretations 
and  explanations  as  they  could  give  to  it.  Their  exe- 
getical  rules  and  Midrash-methods,  simple  as  they  were, 
were  nevertheless  sufficient  for  their  purpose,  which  was  to 
give  all  the  halakic  teachings  in  connexion  with  the 
written  Law.  There  was  no  reason  whatever  to  make 
any  change  in  the  form  of  teaching,  and  there  was 
absolutely  no  need  to  teach  anything  else  besides  the  Book 
of  the  Law  and  its  Midrash.  The  stream  of  Jewish  life, 
during  the  period  of  the  Soferim,  moved  on  smoothly  and 
quietly,  without  any  great  changes.  Under  the  Persian 
rule  the  Jewish  people  were  merely  a  religious  community, 
at  the  head  of  which  stood  the  high-priest,^^  who  was  the 
highest  religious  authority.  The  conditions  which  pre- 
vailed in  this  community  during  the  last  days  of  the 
Persian  rule  were  almost  the  same  as  in  the  earlier  days, 
when    the  community  was   first   organized   by  the  exiles 

25  This  was  the  case,  at  any  rate,  in  the  second  half  of  the  Persian 
period.  See  Wellhausen,  /5;fle////sc//^  ttiid  Jiidische  Gcschichte,  3rd  edition, 
pp.  198  ff.,  and  Schiirer,  Gcscliiclite,  II,  4,  pp.  267  ff. 


MIDRASH    AND    MISHNAH  37 

who  returned  from  Babylon.  The  Book  of  the  Law  ac- 
cepted from  Ezra  by  these  early  founders  and  organizers 
with  the  few  simple  interpretations  given  to  it  by  the 
Soferim,  was  therefore  sufficient  for  almost  all  the  needs 
of  the  community  throughout  the  entire  Persian  period. 
Of  course,  some  slight  changes  in  the  conditions  of  life 
must  have  developed  in  the  course  of  time.  These  changes 
in  the  inner  life  of  the  community  probably  brought  new 
religious  customs.  The  same  changes  probably  required 
certain  modifications  in  the  interpretation  of  some  of  the 
written  laws  or  even  the  introduction  of  new  laws  and  new 
practices.  All  these  necessary  modifications  and  even  the 
few  new  laws  the  Soferim  could  easily  read  into  the 
written  Law  by  means  of  interpretation,  or  even  embody 
the  same  in  the  Book  by  means  of  some  slight  indications 
in  the  text  itself.  Thus  they  found  in  the  Book  of  the 
Law  all  the  teachings  they  required. 

The  Soferim  were  able  to  do  this  because  they  were 
also  the  actual  scribes  whose  business  it  was  to  prepare 
copies  of  the  Book  of  the  Law.  If  they  desired  to  teach 
a  certain  law,  custom,  or  practice,  because  they  considered 
it  as  part  of  the  religious  teachings,  although  it  could  not 
be  found  in,  or  interpreted  into,  the  Book  of  the  Law,  they 
would  cause  it  to  be  indicated  by  some  slight  change  in 
the  text."°     For  instance,  by  adding  or  omitting  a  letter, 

2''  As  we  liave  received  the  Torah  iVom  the  Soferim  and  only  in  the 
textual  form  in  which  they  cast  it  not  considering  some  slight  changes  and 
additions  that  may  have  been  made  in  the  period  after  the  Soferim,  see  below, 
note  43>,  it  is  impossible  now  to  ascertain  the  full  extent  of  the  changes  and 
corrections  made  by  the  Soferim  in  the  original  text  of  the  Law.  However, 
there  is  no  doubt  that  the  Soferim  did  change  and  correct  the  text  of  the  Torah 
which  they  originally  had.  A  tradition  to  this  effect  was  current  among  the 
Rabbis  of  the  Talmud.     The  Rabbis  often  refer  to  such  changes  as  '  correc- 


38  MIDRASH    AND    MISHNAH 

or  by  the  peculiar  spelling  of  a  word  they  could  bring  about 

tions  of  the  Soferim',  DHDID  ppTl  (^Genesis  r.  LIX,  7  and  Exodus  r.  XIII,  i) 
or  DnSID  T\2pr\  (Leviticus  r.  XI,  5).  The3^  enumerated  many  passages  in 
the  Scriptures  which  in  their  present  form  represent  the  corrected  readings 
introduced  by  the  Soferim  (Sifre  Numbers,  §  84,  Friedmann,  p.  22  b,  and 
Mei{ilta,  Beshallah,  Sliimli,  VI,  Weiss,  pp.  46  b-47  a\  In  Tanhuma,  Beshallah 
15  (on  Exod.  15.  7)  it  is  expressly  stated  that  all  these  corrections  were 
made  by  the  Soferim,  the  Men  of  the  Great  Synagogue,  ""wOX  CIDID   ppTl 

Thr^'^r\  nD:3  ;  also,  isnp:  i^h  rhr^r^  no^D  ^tr^x  i^x  dvids  i^'-t-"  ^^i< 

D''"ID'1D.  Even  if  it  should  be  granted  that  these  statements  in  the  Tanhuma 
are  of  later  origin  (see  R.  Azariah  de  Rossi,  Mcor  Enayim,  Imre  Binah, 
ch.  XIX},  it  cannot  be  disputed  that  the  interpretation  of  the  term  ppH 
D^~I21D  as  referring  to  the  corrections  made  by  the  Soferim,  who  were 
identified  with  the  Men  of  the  Great  Synagogue,  is  correct.  This  is  confirmed 
by  the  fact  that  the  same  corrections,  which  in  theMidrashim  are  designated 
as  D''"ID1D  '•J'lpT!,  are  designated  in  theMassorah,  OkJah  We-Oklah  (No.  168. 
ed.  Frensdorf,  p.  113),  as  'corrections  made  by  Ezra'  (Nliy  pTl  p^?3  Pl"^  , 
who  was  the  first  of  the  Soferim.  If  this  tradition  about  the  D''"121D  ^JIpTl 
conflicts  with  the  later  conception  of  the  Rabbis,  namely,  that  the  entire 
Torah  is  from  God,  and  that  the  one  who  maintains  that  there  are  some 
verses  in  the  Torah  which  were  not  spoken  by  God,  is  a  despiser  of  the  word 
of  God  (Sanhedrin  99  a),  this  does  not  argue  against  the  correctness  of  this 
tradition,  as  R.  Azariah  de  Rossi  (/.  c.)  assumes.  On  the  contrary,  this  conflict 
speaks  in  favour  of  our  tradition.  For  it  proves  that  the  tradition  about  the 
DnaiD  ^JIpTl  was  too  well-known  a  fact  to  be  suppressed  by  later  dogmatic 
views.  All  that  the  later  teachers  could  do  was  not  to  deny  the  fact  that 
changes  were  made  in  the  text  but  merely  to  avoid  too  frequent  mention  of  it. 
When  forced  to  mention  the  fact  they  pointed  to  a  few  harmless  changes 
and  omitted  (as  in  Sifre  and  Mekilta")  the  direct  reference  to  the  Soferim 
as  the  authors  of  these  corrections  (compare  Weiss,  Middot  Soferim,  to 
Mekilta,  p.  46  b\  It  was  probably  on  account  of  such  considerations  that 
the  reference  to  the  Soferim,  the  Men  of  the  Great  Si'nagogue,  was  omitted 
from  the  passage  in  Tanhuma,  in  those  old  copies  which  R.  Azariah  de  Rossi 
(/.  c.)  reports  to  have  seen.  The  statement  in  the  Tanhuma  expressly 
ascribing  the  corrections  to  the  Soferim,  the  Men  of  the  Great  Sj'nagogue, 
is  accordingly  not  of  later  origin,  as  R.  Azariah  assumes.  The  omission 
of  this  reference  from  certain  copies  was  due  to  a  later  hand. 

Although  the  corrected  passages  pointed  out  by  the  Rabbis  do  not  deal 
with  the  Law,  we  may  safely  assume  (notwithstanding  Weiss,  /.  c.)  that  the 
Soferim  corrected  even  the  legal  portions  of  the  Pentateuch.  A  correction 
of  the  Ketib  N?  into  the  Kere  1?  (Levit.  11.  21)  certainly  affected  the  Law. 


MIDRASH    AND    MISHNAJI  39 

the  desired  result/'"  They  did  not  hesitate  to  do  so, 
because  they  did  not  in  any  way  change  the  law  as  they 
understood  it.  The  changes  and  corrections  which  they 
allowed  themselves  to  make  in  the  text  were  of  such 
a  nature  that  they  did  not  affect  the  meaning  of  the 
passage,  but  merely  gave  to  it  an  additional  meaning,  thus 
suggesting  the  law  or  custom  which  they  desired  to  teach. 
In  this  manner  they  succeeded  in  grafting  upon  the  written 
Law  all  these  newly  developed  laws  and  customs  which 
they  considered  genuinely  Jewish.  Even  if  the  Soferim 
had  desired  to  introduce  a  new  religious  practice  or  to 
teach  a  new  law  which  could  not  be  represented  as  an 
interpretation  of  the  Law  nor  indicated  in  the  text,  they 
would  not  have  been  compelled  to  change  their  usual  form 
of  teaching.  They  could  still  have  taught  that  law  or 
custom  together  with  the  passage  of  the  written  Law  with 
which  it  had  some  distant  connexion,  offering  it  as  an 
additional  law  or  a  modification  of  the  practice  commanded 
in  the  written  Torah.  Thus,  throughout  the  entire  period 
of  their  activity  the  Soferim  who,  no  doubt,  formed  some 
kind  of  an  authoritative  organization  with  the  high-priest 
as  its  head,  remained  true  to  their  name,  and  continued  to 
teach  only  the  Book  of  the  Law  with  its  interpretation — 
Midrash — and  nothing  else. 

That  the  activity  of  the   Soferim  as  an  authoritative 

This  change,  liUe  most  of  the  Kere  and  Ketib,  originated  with  the  Soferim, 
according  to  the  talmudic  tradition  (Nedarim  37  b).  The  later  teachers, 
for  obvious  reasons,  would  not  mention  the  corrections  made  by  the  Soferim 
in  the  legal  parts  of  the  Pentateuch,  as  it  would  have  cast  unfavourable 
reflections  on  the  authority  of  the  Law  and  the  validity  of  the  Halakah. 

'■^  For  illustrations  of  this  method  of  the  earliest  Midrash  to  indicate 
Halakot  in  the  text  itself,  see  the  writer's  article  '  Midrash  Halakah '  in  the 
Jewish  Encyclopedia,  VIII,  pp.  579  ft". 


4P  MIDRASH    AND    MISHNAH 

body  of  teachers  ceased  with  the  death  of  their  last  member, 
Simon  the  Just  I  (about  270  B.C.)  has  ah-eady  been  shown. 
It  was  the  change  from  the  Persian  to  the  Greek  rule 
that  caused  the  interruption  of  the  activity  and  ended 
the  period  of  the  Soferim.  The  change  in  the  government 
brought  about  many  other  changes  in  the  conditions  of  life 
and  in  the  political  status  of  the  people.  These,  in  turn, 
influenced  the  religious  life  and  the  communal  institutions, 
and  had  their  effect  also  upon  the  activity  and  authority  of 
the  teachers.  All  these  changes  in  the  inner  life  of  the  com- 
munity did  not  come  to  pass  immediately  after  the  people 
came  under  Greek  rule,  for  a  people  cannot  be  quickly 
transformed  by  mere  external  influences.  It  was  through 
a  long  process,  lasting  about  half  a  century,  that  these 
changes  were  gradually  effected.  During  the  lifetime  of 
Simon  the  Just,  the  new  influences  had  not  yet  overthrown 
the  authority  and  the  leadership  of  the  Soferim  as  an 
organized  body  of  teachers.  Simon  who  enjoyed  the  high 
respect  of  the  people  could  maintain  the  old  order  even 
under  the  changed  conditions  by  the  very  influence  of  his 
great  personality.  Being  the  high-priest  and  the  respected 
leader  of  the  people,  he  still  preserved  the  authority  of  the 
teachers,  and  under  his  leadership  they  continued  some  of 
their  usual  activities.  But  with  the  death  of  Simon  all  the 
influences  of  the  new  order  of  things  made  themselves  felt. 
The  activity  of  the  teachers  as  an  authoritative  body 
ceased.  Even  the  authority  of  the  High-priest  was  under- 
mined. He  was  no  more  the  highest  authority  of  a  religious 
community  and  its  chief  representative.  Other  people 
assumed  authority  over  the  community.'  Laymen  arose 
who  had  as  much  influence  among  the  people  and  with  the 
government  as  the  High-priest,  and  they  became  leaders. 


MIDRASH    AND    MISHNAH  4I 

The  people  who  had  now  been  in  contact  with  Greek 
culture  for  half  a  century,  acquired  new  ideas  and  became 
familiar  with  new  views  of  life,  other  than  those  which  they 
had  been  taught  by  their  teachers  in  the  name  of  the  law 
of  their  fathers.     The  rich  and  influential  classes  accepted 
Greek  ideas  and  followed  Greek  customs.     The  leaders  of 
the  people  were    no    longer  guided    by    the   laws    of  the 
fathers,  nor  was  the  life  of  the  people  any  longer  controlled 
solely  by  the  laws  and  customs  of  the  fathers  as  contained 
in    the  Torah.     The   teachers   were   no    longer   consulted 
upon  all  matters  of  life,  as  they  had  been  in  former  days, 
when,  with  the  High-priest  at  the  head  of  the  community, 
they  formed    an    authoritative    body.      Consequently,   the 
interpretation  and    the  development   of  the    laws    of  the 
fathers   did   not   keep    pace  with    the   rapid    changes    and 
developments  in  the  actual  conditions  of  life.    The  changed 
conditions  of  the  time   brought   forth    new    questions    for 
which    no    decisions    were    provided    in    the    laws    of   the 
fathers,  and  no  answers  could  be  found  even  in  the  inter- 
pretations   and    traditions    of  the    Soferim,    because    such 
questions  had  never  before  arisen.     These  questions  were 
decided    by  the  ruling  authorities  who  were  not  teachers 
of  the   Law,  and  in  some  cases   probably  by  the   people 
themselves.     These  decisions,  presumably,  were  not  always 
in  accordance  with  the  principles  followed   by  the  teachers 
of  the  Law.     The  decisions  in  new  cases,  given  by  ruling 
authorities,  and  answers  to  new  questions,  fixed  by  popular 
usage,  became  in  the  course  of  a  few  decades  the  established 
practices  of  the  people.     This  development  ensued  because 
the  people  could  not  distinguish  between  decisions  derived 
from  the  Law  by  interpretation,  and  decisions  given  by 
some  ruling   authority,  but    not    based  upon  any  law  or 


42  MIDRASH    AND    MISHNAH 

tradition  of  the  fathers.  Neither  could  the  majority  of  the 
people  distinguish  between  generally  accepted  customs 
that  had  been  recently  introduced,  and  such  as  had  been 
handed  down  by  the  fathers.  To  the  people  at  large  who 
were  not  concerned  about  historical  and  archaeological 
questions,  both  were  alike  religious  customs  sanctioned  by 
popular  usage. 

Thus  many  new  customs  and  practices  for  which  there 
were  no  precedents  in  the  traditions  of  the  fathers  and  not 
the  slightest  indication  in  the  Book  of  the  Law,  were 
observed  by  the  people  and  considered  by  them  as  a  part 
of  their  religious  laws  and  practices.  No  attempt  was 
made  to  secure  the  sanction  of  the  authority  of  the  Law 
for  these  new  practices  in  order  to  harmonize  the  laws  of 
the  fathers  with  the  life  of  the  times.  The  few  teachers 
(disciples  of  the  Soferim)  were  the  only  ones  who  could 
perhaps  have  brought  about  this  harmonization.  By  means 
of  interpretation  they  might  have  found  in  the  Book  of 
the  Law  some  support  for  the  new  practices,  and  they 
might  have  grafted  the  new  and  perhaps  foreign  customs 
upon  the  old,  traditional  laws  of  the  fathers.  But  these 
teachers  had  no  official  authority  ;  they  were  altogether 
disregarded  by  the  leaders  and  ignored  by  a  large  part 
of  the  people. 

The  fact  that  there  was  no  official  activity  of  the 
teachers,  in  the  years  following  the  death  of  Simon  the 
Just,  is  borne  out  even  by  the  alleged  traditional  report 
given  in  Abot  L  The  Mishnah,  despite  its  anxiety  to 
represent  a  continuous  chain  of  tradition  and  to  maintain 
that  the  activity  of  the  teachers  had  never  been  interrupted, 
yet   finds  itself  unable  to  fill  the  gap  between  Simon  the 


MIDRASH    AND    MISHNAH  43 

Just  I  and  Antigonos.^^  It  docs  not  mention  the  name  of 
even  one  teacher  between  the  years  270  and  190  B.C.,  that  is, 
between  the  latest  possible  date  of  Simon's  death  and  the 
timeof  Antigonos.  Evidently  tradition  did  not  know  of  any 
teacher  during  that  period.  This  would  have  been  impos- 
sible if  there  had  been  any  ofificial  activity  of  the  teachers 
in  those  years. 

^^  It  is  impossible  to  bridge  over  the  gap  in  tlie  succession  of  teachers 
as  giv-en  in  the  Mishiiaii.  It  is  evident  that  Antigonos  could  not  have  been 
the  successor  of  Simon  the  Just  I,  and  the  immediate  predecessor  of  the  two 
Joses.  Halevi's  arguments  {Dorot  Harishoiitm,  I,  ch.  xii,  pp.  198  ff.)  are 
not  convincing.  The  Mishnah  speaks  of  the  two  Joses  as  contemporaries. 
As  such  they  are  also  referred  to  Shabbat  15  a.  We  cannot  for  the  purpose 
of  upholding  the  other  tradition,  namely,  that  there  was  an  uninterrupted 
chain  of  teachers,  deny  this  explicit  report  and  make  of  Jose  b.  Joiianan 
a  colleague  of  Antigonos  and  a  man  older  by  a  full  generation  than  Jose 
b.  Joezer.  If  Antigonos  had  been  the  pupil  and  successor  of  Simon  the  Just  I, 
as  Halevi  (/.  c.)  assumes,  he  could  not  have  been  succeeded  directly  by  the 
two  Joses.  We  would  then  have  a  gap  between  250  b.  c,  the  date  when 
Antigonos  the  pupil  of  Simon  the  Just  I  must  have  died,  and  180  B.C., 
the  time  when  the  two  Joses  must  have  begun  their  activity.  In  spite  of  all 
the  pilpulistic  arguments  of  Halevi  against  Frankel,  it  is  evident  that  the  latter 
is  right  in  assuming  that  Antigonos  did  not  directly  succeed  Simon  the  Just  I 
{Hodegeiica,  p.  31).  If  we  still  desire  to  consider  the  report  in  the  Mishnah 
as  correct,  we  must  interpret  it  to  mean  that  Antigonos  succeeded  Simon 
the  Just  II  (see  Weiss,  Dor,  1,  p.  95)  and  not  the  last  member  of  the  Great 
S^-nagogue  who  was  Simon  the  first  (against  Krochmal,  More  Nebiiclie 
Hazeuian,  pp.  52  and  174).  Indeed,  the  wording  in  the  Mishnah  seems  to 
indicate  this.  For  if  the  Mishnah  meant  to  say  that  Antigonos  succeeded 
that  Simon  the  Just  who  is  mentioned  in  tlie  preceding  paragraph  of  the 
Mishnah  and  designated  as  the  last  member  of  the  Great  Synagogue,  it 
would  have  said  IJJ^D  ^3''p,  as  it  uses  in  the  following  passages  the  phrase 
D~D  "ib^'p.  The  specific  mention  of  the  name  in  the  statement  pyT^u'JD  ^i'p 
pni*n  evidently  shows  that  it  was  another  Simon  who  is  here  referred  to 
as  the  one  who  preceded  Antigonos.  This  can  only  be  Simon  the  Just  II. 
At  any  rate,  it  is  certain  that  after  Simon  I  there  came  a  time  when  there 
was  no  official  activity  of  the  teachers.  Even  the  later  tendency  to  recon- 
struct the  chain  of  tradition,  such  as  we  have  in  the  report  in  the  Mishnah 
Abot.  could  not  succeed  in  finding  the  name  of  a  single  teacher  who  flourished 
in  the  period  between  Simon  I  and  Simon  II  (see  p.  116). 


44  MIDRASH    AND    MISHNAH 

Even  in  those  days,  there  were  without  doubt  some 
teachers  who  preserved  the  traditional  teachings  of  the 
Law.  There  were  some  people  who  remained  faithful  to 
the  laws  and  the  traditions  of  the  fathers,  and  among  them 
some  who  studied  the  Law  in  the  manner  in  which  it  had 
been  taught  bv  the  Soferim.  However,  these  teachers  had 
no  official  authorit}-.  It  was  merely  in  a  private  capacity 
that  they  delivered  their  teachings  to  those  who  wished  to 
follow  them.  However,  absence  of  official  authority  not 
only  did  not  prevent  but  even  helped  the  activities  of  the 
teachers  to  become  of  great  consequence  for  future  develop- 
ments. It  brought  about  two  great  results  which  later 
became  the  most  important  factors  in  developing  the 
Halakah  and  in  shaping  the  Jewish  life.  In  the  first  place, 
it  brought  about  the  popularization  of  the  study  of  the 
Law  and  paved  the  way  for  the  rise  of  teachers  not  of 
the  priestly  families.  In  the  second  place,  it  preserved 
the  text  of  the  Book  of  the  Law  in  a  fixed  form, 
which  resulted  in  giving  this  text  a  sacred,  unchangeable 
character. 

In  the  days  of  the  Soferim,  when  the  High-priest  was 
the  head  of  the  community,  and  when  the  teachers  under 
his  leadership  formed  an  official  body  vested  with  authority 
to  arrange  all  religious  matters  in  accordance  with  the  Law 
as  they  understood  it,  the  knowledge  of  the  Law  was 
limited  to  the  priests  who  were  the  only  official  teachers."^ 

"9  The  Soferim,  up  to  Uie  time  of  the  death  of  Simon  the  Just  I,  were 
mostly,  if  not  exclusively,  priests.  See  my  Saddiicees  and  Pharisees,  p.  6. 
Compare  also  Schiirer,  Geschichte,  11*,  pp.  278-g,  373-4,  and  455,  and 
R.  Smend,  Die  IVcisheit  des  Jesus  Siiach  (Berlin,  1906),  p.  346.  Smend, 
however,  goes  too  far  in  assuming  that  even  as  late  as  the  beginning  of  the 
second  century  b.  c.  all  the  teachers  of  the  Law  were  priests.  This  is  not 
correct.     In  the  middle  of  the  third  century  B.C.,  after  the  death  of  Simon 


MIDRASH    AND    MISHNAH  4^) 

On  the  one  hand,  the  priests  who  were  in  possession  of  the 
law  and  tradition  of  the  fathers  considered  the  teaching  and 
interpreting  of  the  rehgious  law  as  their  priestly  prerogative. 
They  would  therefore  not  impart  to  the  lay  people  a 
thorough  knowledge  of  the  Law  so  that  they  too  could 
become  teachers.**^  This  would  have  resulted  in  curtailing 
their  own  special  privileges,  a  sacrifice  which  priests  are 
not  always  willing  to  make.  On  the  other  hand,  the 
people  had  no  impetus  to  study  the  Law  because  they 
could  rely  on  the  authority  of  their  official  teachers  in 
all  matters  religious.  They  were  satisfied  that  '  the  lips 
of  the  priest  should  keep  knowledge  and  that  they  should 
seek  the  Law  at  his  mouth  \  and  get  from  him  decisions 
concerning  all  the  c^uestions  of  life.  But  when  the 
authority  of  the  High-priest  as  the  ruler  of  the  community 
was  gone,  and  the  priestly  teachers  also  lost  their  official 
authority,  the  study  of  the  Law  was  no  longer  the  activity 
of  an   exclusive  class  of  official    teachers.     A  knowledge 


the  Just  I,  there  were  ah-eady  man}-  lay  teachers.  In  the  beginning  of  the 
second  century  e.g.  they  ah-eady  possessed  great  influence  and  were 
members  of  the  Gerousia.  The  description  of  the  Soferim  as  sitting  in 
the  senate  and  knowing  the  Law,  which  is  given  in  Sirach  38,  refers  to 
both  lay-  and  priest-teachers. 

^0  The  saying  '  Raise  many  disciples',  which  is  ascribed  by  the  Mishnah 
(Abot  I)  to  the  Men  of  the  Great  Synagogue,  does  not  argue  against  this 
statement.  It  can  be  interpreted  to  mean  either  to  raise  many  disciples 
among  the  priests  who  should  carry  on  the  activity  of  teaching,  or  to 
educate  many  pupils  in  a  knowledge  of  the  religious  law,  but  not  to  make 
them  authoritative  teachers.  However,  it  is  very  probable  that  the  later 
teachers  ascribed  to  the  early  Soferim  a  motto  which  they  thought  the 
Soferim  should  have  promulgated.  As  the  fact  of  their  being  priest-Soferim 
was  forgotten,  the  later  teachers  ascribed  to  them  their  own  democratic 
tendencies.  These  tendencies  were  against  the  monopolization  of  the 
knowledge  by  the  priests,  and  in  favour  of  spreading  the  knowledge  of 
the  Law  among  the  people  at  large. 


46  MIDRASH    AND    MISHNAH 

of  the  Law  and  the  traditions  of  the  fathers  no  longer 
gave  its  possessor  the  prerogative  of  sharing  in  the  ad- 
ministration of  the  community.  At  the  head  of  the 
community  now  stood  political  leaders  who  arranged 
communal  affairs  according  to  standards  of  their  own. 

The  study  of  the  Law  now  became  a  matter  of  private 
piety,  and  as  such  it  was  not  limited  to  the  priests.  On 
the  one  hand,  the  priests  no  longer  had  any  interest  in 
keeping  the  knowledge  of  the  Law  jealously  to  themselves, 
as  it  did  not  bring  them  any  special  privileges.  For  such 
influence  as  the  priests  still  had  was  theirs,  not  because 
they  knew  or  taught  the  Law,  but  because  they  were  the 
priests,  in  charge  of  the  Temple,  and  members  of  the 
influential  aristocratic  families.^^  They  therefore  had  no 
hesitancy  in  imparting  a  knowledge  of  the  Law  to  the 
lay  people.  It  must  be  kept  in  mind  that  there  were  at 
all  times  some  true  and  faithful  priests  to  whom  their 
religion  was  dearer  than  personal  advantages  and  family 
aggrandizement.  These  priests  were  now  very  eager  to 
spread  religious  knowledge  among  the  people.  On  the 
other  hand,  the  lay  people  were  now  more  eager  than 
formerly  to  acquire  such  knowledge.  Since  there  was  no 
official  bod)'  of  teachers  to  decide  authoritatively  all  re- 
ligious matters,  the  pious  man  who  cared  for  the  Law 
had  to  be  his  own  religious  authority.  He  therefore 
sought  to  acquire  a  correct  knowledge  of  the  laws  and 
the  traditions  of  the  fathers.  This  resulted  in  the  gradual 
spread  of  a  knowledge  of  the  Law  among  the  pious 
laymen,  and  in  the  rise  of  lay  teachers  who  had  as  much 
knowledge  of  the  Law  as  the  priestly  teachers  themselves. 
These    new    teachers    soon    claimed    for    themselves    the 

■*'   See  below,  note  50. 


MIDRASH    AND    MISHNAH  47 

religious  authority  which  was  formerly  the  prerogative  of 
the  priests. 

For  about  half  a  century,  during  the  ascendancy  of  the 
power  of  the  political  leaders,  these  teachers,  laymen,  and 
priests  had  no  recognized  authority.  They  were  not  con- 
sulted as  to  the  regulation  of  the  communal  affairs,  and 
not  called  upon  to  answer  questions  resulting  from  the 
changed  conditions  of  life.  They  therefore  contented 
themselves  with  merely  preserving  the  Law  and  the 
traditions  that  were  left  to  them  from  tlie  past,  without 
trying  to  develop  them  further  or  add  to  them  new 
teachings  of  their  own.  Accordingly,  they  continued  to 
teach  the  text  of  the  Book  of  the  Law  with  the  interpreta- 
tions given  to  it  by  the  Soferim  and  the  Halakot,  which 
the  latter  indicated  in  or  connected  with  the  text  of  the 
Law.  They  did  not  forget  any  of  the  interpretations  or 
teachings  of  the  Soferim.^-  Thus  they  preserved  the  text 
of  the  Law  in  the  exact  form  in  which  it  was  handed  down 
to  them  by  the  Soferim,  with  all  of  its  peculiarities,  as  well 
as  all  the  changes  and  indications  made  in  it  by  the 
Soferim.  They  neither  changed  the  text  nor  inserted 
indications  of  new  laws  therein.  And  after  the  text  was 
for  many  years  in  a  certain  form,  that  became  the  fixed 
and  permanent  form.  In  the  course  of  a  (c\v  decades  that 
permanent  form  with  all  its  peculiarities  came  to  be  con- 
sidered   as    sacred,   so    that   no    one    afterwards    dared    to 

■*2  I  must  emphasize  this  point  in  opposition  to  Oppenheim  who  assumes 
that  in  the  time  of  persecution  they  forgot  the  teachings  of  the  Soferim 
and  for  this  reason  began  to  teach  independent  Halakot.  The  troublesome 
times  might  have  hindered  original  activity  and  the  development  of  the 
teachings,  but  could  not  have  prevented  the  preservation  of  the  older 
teachings.  If  they  did  study  at  all,  they  studied  what  was  left  to  them 
from  the  Soferim. 


48  MIDRASH    AND    MISHNAH 

introduce  textual  changes,  as  the  Soferim  of  old  used 
to  do,*"  for  the  purpose  of  indicating  new  laws  or  new 
meanings  to  old  laws.  Thus  we  see  that  after  the  death 
of  Simon  the  Just  I,  the  conditions  in  the  community  and 
as  a  result  thereof  the  activities  of  the  teachers  differed 
greatly  from  those  that  were  obtained  in  the  times  of  the 
Soferim.  There  prevailed  a  state  of  religious  anarchy, 
wherein  the  practical  life  of  the  people  was  not  controlled 
by  the  law  of  the  fathers  as  interpreted  by  the  religious 
authorities,  nor  were  the  activities  of  the  teachers  carried 
on  in  an  official  way  by  an  authoritative  body.  This 
chaotic  state  of  affairs  lasted  for  a  period  of  about  eighty 
years,  until  another  great  change  took  place  which  brought 
the  religious  anarchy  to  an  end.  This  happened  about  the 
year  190  B.C.,  when  an  authoritative  Council  of  priests  and 
laymen  was  again  established.  This  new  Council  or  San- 
hedrin  assumed  religious  authority  to  teach  and  interpret 
the  Law  and  proceeded  to  regulate  the  life  of  the  com- 
munity according  to  the  religion  of  the  fathers. 

According  to  a  report  in  Josephus  {Antiquities,  XII,  3,  8j, 
Antiochus  III  manifested  a  very  friendly  attitude  towards 
the  people  of  Judea  after  that  province  had  come  under  his 
rule.  Following  his  victory  over  the  Egyptian  king  at  the 
battle  of  Panea  (198  B.C.),  he  is  said  to  have  addressed  to 
his  general  Ptoleniaeus  an  epistle  in  favour  of  the  Jews. 
In  this  letter,  reproduced  by  Josephus,  the  following  para- 

43  \Ye  are  not  considering  here  the  slight  changes  which  according 
to  Geiger  {Urscliriff,  pp.  170  f.)  were  made  as  late  as  the  time  of  R.  Akiba 
and  according  to  Pineles  (Darkah  slid  Torah,  p.  96)  even  as  late  as  the  time 
of  Judah  ha-Nasi  I.  As  a  whole  the  text  was  fixed.  Possibly,  the  Pharisaic 
teachers,  as  the  party  grew  in  influence  and  as  they  became  the  sole 
authorities  of  the  religious  law,  ventured  again  to  make  slight  changes  and 
to  indicate  their  teachings  in  the  text. 


MIDRASH    AND    MISHNAH  49 

graph  occurs  (§  142) :  '  And  let  all  of  that  nation  live 
according  to  the  laws  of  their  own  country  and  let  the 
senate  {yepovma)  and  the  priests  and  the  scribes  of 
the  Temple  and  the  sacred  singers  be  discharged  from 
poll  money  and  the  crown  tax  and  other  taxes  also.'  We 
learn  from  this  that  the  Jews  under  Antiochus  III  were  to 
live  according  to  their  own  laws,  and  that  there  was, 
besides  the  priests,  another  authoritativ^e  body,  a  senate 
or  a  Gerousia,  of  which  laymen  were  also  members. 
Otherwise  the  mention  of  the  senate  and  the  priests 
separately  would  have  no  sense.** 

It  is  true  that  some  details  in  the  epistle  prove  the 
authorship  of  Antiochus  to  be  spurious.  It  was  evidently 
not  written  by  Antiochus.  It  originated  at  a  much  later 
date  and  was  only  incorrectly  ascribed  to  Antiochus  by 
some  Hellenistic  writer  whom  Josephus  followed  (see 
Biichler,  Die  Tobiadcn  nnd  Oniaden,  pp.  158  seq.).  How- 
ever, if  the  conditions  in  the  Jewish  community  under 
Antiochus  HI  had  been  known  to  be  very  different  from 
those  described  in  this  epistle,  neither  Josephus  nor  his 
authority  would  have  accepted  the  authorship  of  Antiochus. 

<*  Buchler  {op.  cif.,  p.  171)  notices  this  strange  feature  in  the  epistle, 
namely,  that  the  Gerousia  is  mentioned  separately  from  the  priests.  He 
explains  it  by  assuming  that  the  epistle  was  originally  written  by  a  man 
who  lived  outside  of  Palestine  and  who  did  not  know  that  in  Palestine  the 
senate  was  composed  of  priests.  While  this  ma\'  explain  why  the  author 
of  the  original  epistle  could  have  made  the  mistake,  it  does  not  explain 
how  Josephus  who  was  a  Palestinian  or  the  Palestinian  authority  that  he 
followed  could  have  accepted  this  epistle  as  genuine.  One  or  the  other 
certainlj'  would  have  noticed  that  it  did  not  represent  actual  conditions. 
This  difficulty  is  removed  by  assuming  that  Josephus  knew  that  at  the  time 
of  Antiochus  the  Great  the  senate  in  Judea  was  formed  not  exclusively  of 
the  priests  but  also  of  laj'men.  He,  therefore,  did  not  find  it  strange  that 
the  epistle  should  mention  the  senate  and  the  priests,  i,  e,  the  senate  as 
a  body  not  identical  with  the  priests. 

L.  E 


50  MIDRASH    AND    MISHNAH 

Evidently  Josephus  on  his  part  had  no  reason  to  doubt 
the  genuineness  of  this  epistle,  and  in  his  opinion  it 
could  well  have  originated  from  Antiochus.  This  can  only 
be  explained  by  assuming  that  Josephus  knew  from  other 
sources  that,  after  Judaea  had  come  under  Syrian  rule, 
there  was  a  revival  of  the  religious  life  in  the  community 
and  a  renewal  of  the  official  activity  of  the  teachers.  From 
the  same  source  he  must  have  known  that  the  people  tried 
again  to  live  according  to  their  laws  and  that  there  was  at 
the  head  of  the  community  an  authoritative  body,  a  Senate 
or  a  Gerousia,  of  which  lay  teachers  also  were  members. 
As  these  events  took  place  under  the  rule  of  Antiochus, 
Josephus  linked  them  in  his  mind  with  the  political  condi- 
tions under  the  same  king  and  believed  they  were  the 
direct  results  of  Antiochus's  friendly  attitude  towards  the 
Jews.  In  this  supposition  Josephus  was  perhaps  right. 
It  is  quite  probable  that  the  change  in  the  government 
brought  about  the  change  in  the  internal  affairs  of  the 
community.  As  it  weakened  the  influence  of  the  former 
political  leaders,  it  made  it  possible  for  that  new  organiza- 
tion composed  of  priests  and  lay  members  to  assume  the 
leadership  of  the  community.  And  when  Josephus  found 
an  epistle,  ascribed  to  Antiochus,  which  permitted  the 
Jews  to  live  according  to  their  own  laws  and  actually 
spoke  of  a  senate  besides  the  priests,  he  could  well  believe 
it  to  have  been  written  by  Antiochus. 

In  a  source  older  than  Josephus  we  indeed  find  a  report 
of  the  renewed  religious  activity  by  an  authoritative 
assembly  composed  of  priests  and  lay  teachers  in  the  first 
two  decades  of  the  second  century  B.C.  I  refer  to  the 
'  Fragments  of  a  Zadokite  Work  ',  published  by  Schechter 
{pociuneiits  of  Jewish  Sectaries^  vol.  I,  Cambridge,  1910). 


MIDRASH    AND    MISHNAH  51 

There  it  is  stated  (Text  A,  p.  i)  that  390  years  after  God 
had  delivered  them  (the  Jewish  people)  into  the  hands  of 
Nebuchadnezzar,  the  King  of  Babylon  (about  196  B.C.,  i.e. 
390  years  after  586  B.C.),  God  made  to  grow  a  plant  (i.e.  an 
assembly)  of  Priests  and  Israelites.  They  (the  members  of 
that  assembly)  meditated  over  their  sin  and  they  knew  that 
they  had  been  guilty  [of  neglecting  the  religious  laws]. 
They  sought  to  find  the  right  way  [to  lead  the  people  back 
to  the  Law  of  God].'*'^  Again  on  page  6  the  same  fact  is 
stated  even  more  clearly.  There  it  is  said  that '  God  took 
men  of  understanding  from  Aaron  (i.e.  from  among  the 
priests)  and   from    Israel  wise    teachers    (i.  e.   non-priestly 

*'"  The    passage    in    the    text  A,    p.  i,   lines  5  ff. ,    reads    as    follows  : — 

\'cnb)  IVIN  ns*  trn^^  nyuro  ::'-ivi:'  pns'Di  i:'Ni'L;'no  n?::»^i  ny^^  bni 
ciniyD  ViT-i  DH  nvx's  D"'"J'jn'  '2  lyn-'i  n^v^  y^'2')  inr^nx  ddi 
)n)i:^-\i  D^c  ibi  >3  Dn''"L:'yD  ^s*  bij^  p''')  Dn*j'y  D''Jd*  Tin  n^i:'"j':?:''3i 

{-l?^i:^)  13^  IMl  Q3"'TTn^  Tin  n-|1?0  D?h  Op^).  'And  at  the  end  of  the 
wrath,  three  hundred  and  ninety  years  after  He  had  delivered  them  into 
the  hand  of  Nebuchadnezzar,  king  of  Babylon,  He  remembered  them  and 
made  bud  from  Israel  and  Aaron  a  root  of  a  plant  to  inherit  His  land  and  to 
rejoice  in  the  good  of  His  earth.  And  thej'  meditated  over  their  sin  and 
they  knew  that  they  were  guilt}'  men  and  they  were  like  the  blind  groping 
in  the  way  twenty  3'ears.  And  God  considered  their  deeds,  for  they  sought 
Him  with  a  perfect  heart,  and  He  raised  for  them  a  teacher  of  righteousness 
to  make  them  walk  in  the  way  of  His  heart'  (Translation,  as  given  by 
Schechter).  It  is  evident  that  the  author  in  describing  the  origin  of  the 
Zadokite  sect  reviews  the  conditions  that  prevailed  in  Judea  prior  to 
the  formation  of  this  sect.  The  period  of  '  wrath '  or,  as  the  parallel  passage 
(p.  5)  has  it,  '  the  desolation  of  the  land',  is  the  time  of  the  wars  between 
Syria  and  Egypt  before  Antiochus  the  Great  finally  acquired  Palestine. 
It  was  after  this  period  had  come  to  an  end,  about  three  hundred  and  ninety 
years  after  God  had  given  the  people  into  the  hand  of  Nebuchadnezzar 
(about  196  E.  c,  390  after  586)  that  God  raised  up  a  plant  from  Israel  and 
Aaron.  '  Plant'  here  is  a  designation  for  an  assembl}'  or  Sanhedrin  (comp. 
Genesis  r.,  LIV,  6,  p-nnjD  T\]  b'C'H  ^'J'X  yu2"''l,  and  Hullin  92a,  nmiD^  NMI 

E  2 


52  MIDRASH    AND    MISHNAH 

Israelitic  teachers)  and  caused  them  to  come  together  as  an 
assembly  (DP^y'^l).  They  dug  the  well  .  .  .  ,  that  is  the 
Torah  '.^'''  This  means  that  the  assembled  priests  and  lay 
teachers  together  searched  the  Law  of  the  fathers  to  find 
in  it  a  way  of  prescribing  for  the  religious  needs  of 
their  time. 

The  same  tradition  pertaining  to  the  renewed  activity 
of  the  teachers  and  the  existence  of  a  Sanhedrin  composed 
of  priests  and  lay  teachers  in  the  time  of  Antiochus,  is  also 
found  underlying  a  report  in  the  Mishnah.  According  to 
this  report,  the  head  of  the  Sanhedrin  at  that  time  was  Anti- 
gonos  of  Soko,  a  lay  teacher,  and  succeeding  him  were  Jose 
ben  Joezer  of  Zeredah  and  Jose  ben  Johanan  of  Jerusalem 
(Abot  I,  3-4).  Of  the  latter  two,  Jose  ben  Joezer,  a  pious 
priest,   is  said  to  have  been  the  president  and  Jose  ben 

We  learn  from  this  report  that  in  that  assembly  or  the  reorganized 
Sanhedrin,  where  the  nucleus  was  formed  for  the  two  parties,  Sadducees 
and  Pharisees,  there  also  arose  a  third  partj^  or  sect,  composed  both  of 
priests  and  Israelites  who  differed  from  the  two  other  groups,  the  Priest- 
Sadducees  and  the  Israelite-Pharisees.  This  third  group  acknowledged  the 
rights  of  the  lay  people  to  be  like  the  priests,  but  would  otherwise  not 
follow  the  tendencies  of  these  lay  teachers  who  formed  the  nucleus  of  the 
Pharisaic  party.  This  third  group  formed  a  special  sect  under  a  teaci.er 
of  righteousness  and  emigrated  to  Damascus. 

We  further  learn  from  this  report  that  for  about  twenty  years  there  was 
harmony  between  the  various  elements  in  this  new  assembly  and  that  they 
tried  to  find  a  way  of  arranging  the  life  of  the  community  in  accordance 
with  the  Law  of  God,  as  handed  down  to  them  from  their  fathers. 

*'''  The  passage  on  p.  6,  line  2-3,  reads  as  follows  :  □'•303  pHND  np^l 
n};?3C'^"l  D"'03n  bx~li:'''D"l .  The  phrase  D''D3n  ^N"1""'C1  reminds  one  of 
the  term  7S"ltJ'''  ^D2r\  'Lay  teachers  of  Israelitic  descent',  which  later  on 
was  the  designation  of  the  Pharisees,  because  these  lay  teachers  in  the 
reorganized  Sanhedrin  formed  the  nucleus  of  the  Pharisaic  party.  See  my 
Sadducees  and  Pharisees,  in  Studies  in  Jewish  Literature  issued  in  honour  of 
Dr.  K.  Kohler,  pp.  116  ff.  The  phrase  Dyi2t:"*l  means  'he  assembled 
them',  like  Dyn  DN  ^IN"-'  y?X'''T,   i  Sam.  15.  4.  ' 


MIDRASH    AND    MISHNAH  53 

Johanan,  a  lay  teacher,  the  vice-president  of  the  Sanhedrin 
Hagigah  II,  2).  Of  course,  these  reports  in  the  Mishnah, 
in  the  form  in  which  we  have  them,  are  of  a  comparatively 
late  date  and  cannot  be  considered  as  historical.^'  They 
form  part  of  that  artificial  reconstruction  of  history,  under- 
taken by  the  later  teachers  who  aimed  to  establish  the 
fiction  of  a  continuous  chain  of  tradition  and  the  alleged 
uninterrupted  leadership  of  the  Pharisaic  teachers  through- 

*''  It  is  very  unlikely  that  Jose  b.  Joezer  was  president  (N^'J'3)  of  the 
Sanhedrin  although  he  belonged  to  an  influential  aristocratic  family  and 
was  a  priest  (njlH^Q'J'  T'DH,  Hagigah  III,  2%  He  and  his  colleague 
Jose  b.  Johanan  probably  were  the  leaders  of  that  group  of  pious  lay 
teachers  in  the  Sanhedrin,  the  Hasidim,  who  were  the  forerunners  of  the 
Pharisees.  This  may  be  concluded  from  the  report  in  i  I\Iacc.  7.  12-16, 
where  we  read  as  follows  :  'Then  did  assemble  unto  Alcimus  and  Bacchides 
a  company  of  Scribes  to  require  justice.  Now  the  Asideans  Hasidim) 
were  the  first  among  the  children  of  Israel  (i.  e.  non-priests)  that  sought 
peace  of  them.'  These  Hasidim  who  are  here  identified  with  the  Scribes 
are  also  designated  as  mighty  men  of  Israel  (i.  e.  non-priests  ,  even  all 
such  as  were  voluntarily  devoted  unto  the  Law  {ibid.,  2.  42).  We  learn 
from  these  references  that,  prior  to  the  Maccabean  uprising,  there  were 
already  scribes  who  were  not  priests,  that  is,  lay-teachers  of  Israelitic 
•descent,  who  were  mightj'  and  influential  in  the  community,  otherwise  they 
could  not  have  assumed  the  authority  to  go  to  Alcimus  to  negotiate  for 
peace.  They  evidently'  were  of  the  same  group  of  lay  teachers  in  that 
reorganized  Sanhedrin,  who  were  the  forerunners  of  the  Pharisees.  They 
were  distinct  from  the  other  members  of  the  Sanhedrin  in  that  they  were 
merely  concerned  with  the  religious  liberty  and  were  therefore  willing 
to  recognize  Alcimus  if  they  could  obtain  from  him  peace  and  religious 
freedom.  Jose  b.  Joezer  was  among  this  group,  and  probably  was  their 
leader  (see  above,  note  29).  In  the  mind  of  the  later  Pharisaic  teachers 
it  was  this  group  of  the  Hasidim  in  the  Sanhedrin  which  was  looked  upon 
and  considered  as  the  Sanhedrin.  Its  leaders  were  considered  as  the  real 
leaders  of  the  whole  Sanhedrin.  Thus  originated  the  tradition  about  the 
Zuggot  as  the  heads  of  the  Sanhedrin.  For  later  tradition  considers  only 
those  teachers  who  were  of  the  Pharisees  as  legitimate  members  of  the 
Sanhedrin,  and  the  Sadducees  who  constituted  the  majority  of  the  members 
and  were  the  actual  leaders  of  the  Sanhedrin  are  regarded  as  intruders  and 
usurpers. 


54  MIDRASH    AND    MISHNAH 

out  all  the  past  historj^  Unhistorical  as  these  reports  may 
be,  they  certainly  contain  some  kernel  of  truth.  This 
truth  consisted  in  the  fact,  known  to  them,  that  there  was 
some  authoritative  assembly  composed  of  priests  and  lay 
teachers,  of  which  these  men,  Antigonos  and  the  two 
Joses,  were  prominent  members.  This  historical  report^ 
the  later  teachers  elaborated  to  fit  into  their  scheme. 
They  ignored  all  the  other  members,  probably  even  the 
real  leaders  of  that  Sanhedrin,  and  represented  those 
teachers  as  the  real  leaders  who  were  pious  followers 
of  the  traditional  law  and  who  were  so  to  speak  the 
fathers  of  the  Pharisaic  party.  However,  whether  Anti- 
gonos and  Jose  were  really  the  heads  of  the  Sanhedrin 
as  tradition  represents  them,  or  merely  prominent  members, 
or  perhaps  merely  the  leaders  of  the  more  pious  group  in 
that  Sanhedrin,  the  Hasidim,  this  much  is  sure :  there  was 
at  that  time  an  assembly  or  a  Sanhedrin,  composed  of 
priests  and  lay  teachers  with  official  authority  to  arrange 
the  religious  affairs  of  the  people.  The  members  of  this 
Sanhedrin  took  up  the  interrupted  activity  of  the  former 
teachers,  the  Soferim,  and,  like  them,  sought  to  teach  and 
interpret  the  Law  and  to  regulate  the  life  of  the  people  in 
accordance  with  the  laws  and  traditions  of  the  fathers. 
But  in  their  attempt  to  harmonize  the  laws  of  the  fathers 
with  the  life  of  their  own  times,  they  encountered  some 
great  difficulties. 

It  is  true,  the  teachers  who  were  now  members  of  the 
authoritative  council  or  Sanhedrin,  were  in  the  possession 
of  the  Book  of  the  Law,  in  the  exact  form  in  which  it  was 
transmitted  to  them  by  the  Soferim.  They  also  knew  all 
the  interpretation  of  the  Soferim,  as  well  as  all  the  tradi- 
tional   teachings    and    additional    laws    which    the    latter 


MIDRASH    AND    MISHNAH  55 

connected  with  or  based  on  the  written  laws  of  the 
Pentateuch.  But  all  the  laws  contained  or  indicated  in 
the  text  of  the  Book  together  with  all  the  traditional 
teachings  given  by  the  Soferim  in  connexion  with  the 
Book  of  the  Law  were  not  sufficient  to  meet  the  require- 
ments of  the  new  situation.  These  laws  did  not  provide 
answers  for  all  the  questions  that  arose,  and  could  not 
furnish  solutions  for  the  new  problems  in  the  life  of  the 
people.  For,  all  these  new  problems  and  questions  were 
the  result  of  new  conditions  of  life  now  prevailing  in  Judea, 
conditions  utterly  different  from  those  in  the  times  of  the 
Soferim.  The  problem  then  became,  how  to  find  in  the 
old  laws  new  rules  and  decisions  for  the  questions  and 
unprecedented  cases  that  now  arose. 

This  difficulty  was  aggravated  by  the  fact  that  during 
the  seventy  or  eighty  years  of  religious  anarchy,  many  new 
practices  had  been  gradually  adopted  by  the  people.  In 
the  course  of  time,  these  came  to  be  considered  as  Jewish 
religious  practices,  and  no  distinction  was  made  between 
them  and  older  religious  practices  contained  in  the  teachings 
of  the  Soferim  and  based  on  the  traditions  of  the  fathers. 
Again,  the  outlook  of  the  people  had  broadened  and  their 
religious  concepts  had  become  somewhat  modified  during 
those  years.  Many  an  old  law  assumed  a  new  and  different 
meaning  or  was  given  a  new  application,  not  by  the  decree 
of  an  authoritative  body  of  teachers,  but  by  the  general 
opinion  of  the  people  who  had  outgrown  the  older  conception 
of  that  law.  Many  questions  were  decided  during  those 
years  by  the  people  themselves  or  by  such  rulers  and  leaders 
as  they  had.  Such  decisions,  though  not  given  by  any 
religious  authority  and  not  derived  from  the  written  law, 
became,  nevertheless,  recognized  rules  and   principles,  re- 


56  MIDRASH    AND    MISHNAH 

spected  by  the  people  as  much  as  their  other  laws  written 
or  indicated  in  the  Book.  It  was  such  new  decisions  and 
popular  modifications  of  some  laws,  as  well  as  the  generally 
observed  new  customs  and  practices,  that  constituted  a 
large  part  of  the  traditional  laws  and  practices.  These 
traditional  laws  naturally  had  no  indication  in  the  written 
Law  and  no  basis  in  the  teachings  of  the  Soferim,  because 
they  developed  after  the  period  of  the  Soferim. 

The  reorganized  Sanhedrin  (after  190)  had  to  reckon 
with  these  new  laws  and  customs,  now  considered  as 
traditional  because  observed  and  practised  by  the  people 
for  a  generation  or  more.  They  had  to  recognize  them  as 
part  of  the  religious  life  of  the  people.  But  in  order  to  be 
able  to  accept  and  teach  them  officially  as  part  of  the  reli- 
gious Law,  the  members  of  the  Sanhedrin  had  to  find  some 
authority  for  these  new  laws  and  customs.  They  had 
either  to  find  for  them  some  basis  in  the  traditions  and 
teachings  of  the  Soferim,  or  to  find  proof  for  them  by  some 
new  interpretation  of  the  written  Law.  This,  however,  was 
not  an  easy  task  to  perform.  The  present  teachers,  although 
members  of  an  official  body,  like  the  Soferim  of  old,  could 
not,  like  these  Soferim,  indicate  new  laws  in  the  text  by 
means  of  slight  changes  or  additional  signs,  because  the 
pliability  of  the  text  was  gone.  The  text  Avas  now  in 
a  fixed  form  which  was  considered  sacred,  and  no  changes 
could  be  made  in  it.  The  simple  methods  of  interpretation 
used  by  the  Soferim  were  also  inadequate  for  the  needs  of 
the  present  teachers.  These  simple  methods  could  not 
furnish  enough  interpretations  on  which  to  base  the  new 
decisions  needed  for  the  times.  Throughout  the  period  of 
the  Soferim  the  development  of  the  interpretations  of  the 
Law  kept  pace  with  the  development  of  the  conditions  of 


MIDRASH    AND    MISHNAH  57 

life.  But  for  the  teachers  of  the  reorganized  Sanhedrin, 
these  simple  methods  were  insufficient  because  their  de- 
velopment had  been  arrested  for  about  eighty  years.  We 
have  seen  above  that  the  development  in  the  conditions  of 
life  after  the  Soferim,  took  place  without  a  corresponding 
development  in  the  teachings  and  interpretations  of  the 
Law.  Labouring  under  such  disadvantages  the  new  San- 
hedrin found  it  very  difficult  to  solve  the  problem  of 
harmonizing  the  Law  of  the  fathers  with  the  life  of  the 
people. 

Having  no  reports  concerning  that  time,  we  cannot 
trace  the  activity  of  the  new  Sanhedrin  from  its  beginnings. 
We  know  only  that  it  was  organized  after  Judea  had  come 
under  Syrian  rule,  that  is,  after  196  B.C.  Some  years  must 
have  passed  before  the  above-mentioned  difficulties  were 
fully  realized  and  plans  proposed  for  their  solution.  It 
was  probably  not  until  the  time  of  Antiochus  Epiphanes 
that  such  definite  plans  were  considered."^^     Different  solu- 

^*  From  the  report  in  the  Zadokite  Fragment  we  learn  that  for  twenty 
years  there  was  harmony  among  the  various  elements  of  that  reorganized 
Sanhedrin  and  all  sought  God  with  a  perfect  heart  and  endeavoured  to  order 
their  lives  in  accordance  with  His  Law  i^see  above,  note  44).  This  means 
that  before  the  year  175  b.  c,  that  is,  twenty  years  after  196  b.  c,  the  date 
of  the  organization  of  that  new  Sanhedrin,  the  differences  of  opinion  did 
not  lead  to  an  outspoken  opposition  between  the  difl'erent  groups  within 
that  Sanhedrin,  It  was  only  after  the  year  175  B.C.,  that  is,  under  the 
reign  of  Antiochus  Epiphanes,  that  these  differences  of  opinion  became 
so  marked  as  to  characterize  the  different  groups  in  that  Sanhedrin  as 
distinct  from  one  another.  This  is  also  stated  in  the  Assumptio  Mosis  6.  2 
where  we  read  as  follows :  *  And  when  the  time  of  chastisement  draws 
nigh  and  vengeance  arises  through  the  kings  who  share  in  their  guilt  and 
punish  them,  they  themselves  also  shall  be  divided  as  to  the  truth.'  This 
refers  to  the  time  before  the  Maccabean  revolt,  and  the  king  through  whom 
they  will  be  punished  can  only  refer  to  Antiochus  Epiphanes.  We  are 
accordingly  told  that  in  the  time  of  Antiochus  Epiphanes,  after  the  year 
175  B.C.,  there  was  a  division  among  the  Jews  themselves  in  regard  to 


58  MIDRASH    AND    MISHNAH 

tions  were  offered  by  the  various  members  of  the  Sanhedrin. 
This  difference  of  opinion  in  regard  to  the  solution  of  this 
problem  caused  a  breach  in  that  Sanhedrin  which  ulti- 
mately resulted  in  a  division  into  parties,  namely,  Pharisees 
and  Sadducees.  This  breach  in  the  unanimity  of  opinion 
was  effected  during  the  time  of  Jose  ben  Joezer  and  Jose 
ben  Johanan,  the  successors  of  Antigonos,  and  this  is 
possibly  the  historic  fact  upon  which  is  based  the  tradition 
that  ascribes  the  origin  of  the  two  parties,  Pharisees  and 
Sadducees  to  this  particular  time.'*'' 

The  priestly  group  in  that  assembly,  whose  exclusive 
privilege  it  had  formerly  been  to  give  instruction  in  religious 
matters,  and  who  even  now  participated  prominently  in  the 

the  truth,  that  is,  as  regards  their  religious  laws.  The  two  groups  men- 
tioned there  are  those  who  later  on  formed  the  two  parties,  Sadducees  and 
Pharisees.  Compare  also  the  Book  of  Enoch  90.  6,  where  these  two 
groups,  the  nucleus  of  the  two  parties,  are  referred  to  as  appearing  first 
at  that  time.  This  also  agrees  with  the  report  in  2  Maccabees,  that  in  the 
days  of  Onias  III,  before  Antiochus  Epiphanes,  the  laws  were  kept  very 
strictly  owing  to  the  goodliness  of  Onias  (3.  i)  who  was  a  zealot  for  the 
Law  (4.  2). 

*^  The  legendary  story  in  Abot  d.  R.  Nathan  (version  A,  ch.  V,  version  B, 
ch.  X,  Schechter,  p.  26)  contains  a  kernel  of  truth  in  that  it  dates  back  the 
origin  of  the  conflict  between  the  two  parties  to  the  time  of  the  pupils  of 
Antigonos.  All  that  the  story  really  tells  us  is  that  among  the  disciples 
or  successors  of  Antigonos  there  were  already  great  diflerences  of  opinion 
which  divided  them  into  two  groups.  Only  one  must  keep  in  mind  that 
the  first  disagreement  was  not  yet  a  real  division.  The  complete  separation 
of  the  two  groups  and  their  formation  into  two  distinct  parties  took  place 
later  on  in  the  time  of  John  Hyrcanus  (see  my  Sadducees  and  Pharisees,  p.  8, 
note  2),  This  seems  also  to  be  indicated  in  tlie  story  of  Abot  d.  R.  Nathan, 
where  the  statement  'rh  Ili'T'SI  III^H  'they  separated'  refers  to  the  pupils 
of  the  successors  of  Antigonos.  This  would  refer  to  the  time  of  Joshua 
b.  Perahiah.  the  successor  of  Jose  b.  Joezer,  who  was  the  pupil  of  Antigonos. 
This  explanation  will  answer  the  objections  raised  by  Halevi  {Dorot/t 
Harishomm,  I  c,  VIII,  169  ff.)  against  putting  the  date  of  the  origin  of  the 
.Sadducean  party  at  the  time  of  the  pupils  of  Antigonos. 


MIDRASH    AND    MISHNAH  59 

administration  of  the  communal  and  religious  affairs,^"  had 
a  simple  solution  for  the  problem  in  conformity  with  the 
maintenance  of  their  authority.  In  their  opinion,  the  main 
thing  was  to  observe  the  laws  of  the  fathers  as  contained  in 
the  Book  of  the  Law,  because  the  people  had  pledged 
themselves,  by  oath,  in  the  time  of  Ezra,  to  do  so.  If 
changed  conditions  required  additional  laws  and  new  regu- 
lations, the  priests  and  rulers  were  competent  to  decree 
them  according  to  authority  given  to  them  in  Deut.  1 7. 
8-13.  They  maintained  that  the  priestly  rulers  of  former 
generations  had  always  exercised  this  authority.  For  this 
reason  they  did  not  deem  it  necessary  that  all  the  new  laws 
and  regulations  needed  for  the  changed  conditions  of  life 
should  be  found  indicated  in  the  Book  of  the  Law  or  based 
on  the  teachings  of  former  generations.  Thus  the  priestly 
members  of  that  assembly,  the  future  Sadducees,  did  not 
feel  the  need  of  developing  the  old  laws,  or  of  forcing 
interpretations  into  the  written  Law.  They  declared  the 
written  Law  with  all  the  traditional  interpretations  of  the 
Soferim  absolutely  binding.  However,  as  rulers  of  the 
people,  the\-  claimed  the  right  to  decide  by  virtue  of  their 
own  authority  those  new  questions  for  which  the  laws  of 
the  fathers  did  not  provide. 

This  apparently  simple  solution  offered  by  the  priestly 
group    in  the  Sanhedrin  did  not  iind  favour  with  the  lay 

5°  Even  during  the  period,  when  the  priests  did  not  carry  on  any  official 
activity  as  authoritative  teachers,  they  were  still  not  without  influence  and 
authority.  Their  families  still  possessed  political  power,  and  some  of  them 
were  influential  leaders.  In  the  Temple  they  had  an  undisputed  authority 
(_see  Schiirer,  Gescliichte,  114,  pp.  279-80).  As  priests  and  leaders  they  had 
thus  become  accustomed  to  exercise  authority  independently  of  the  Law. 
Their  influence  in  the  last  few  decades  was  not  due  to  their  being  teachers 
of  the  Law  but  to  the  fact  that  they  formed  an  influential  aristocracy  and 
had  control  over  the  Temple  and  its  service. 


6o  MIDRASH    AND    MISHNAH 

members  of  that  body.  These  lay  members  who  had 
never  had  a  share  in  ruHng  the  people,  now,  because  of 
■  their  knowledge  of  the  Law,  claimed  equal  authority  with 
the  priests.  They  refused  to  recognize  the  authority  of 
the  priests  as  a  class,  and,  inasmuch  as  many  of  the  priests 
had  proven  unfaithful  guardians  of  the  Law,  they  would  not 
entrust  to  them  the  regulation  of  the  religious  life  of  the 
people.  Li  the  opinion  of  these  democratic  lay  teachers, 
an  opinion  also  shared  by  some  pious  priests,  the  right  to 
decide  religious  questions  given  in  Deut.  17.  9  ff.  to  the 
priests  was  not  given  to  them  as  a  family  privilege  merely 
because  they  were  priests,  but  because  they  were  teachers 
of  the  Law,  and  only  as  long  as  they  were  teachers 
of  the  Law.  The  same  right  was  equally  granted  to  the 
teachers  of  the  Law  who  were  not  priests.  Both  priests 
and  lay  teachers  had  no  other  authority  except  that  of 
speaking  in  the  name  of  the  Law.  They  had  merely  the 
right  of  interpreting  the  Law  and  of  deciding  questions 
according  to  their  understanding  of  the  Law.  They  had 
absolutely  no  authority  to  issue  new  laws  or  decide  religious 
questions  according  to  principles  other  than  those  laid 
down  in  the  Law,  for  the  Law  alone  was  to  be  the 
authority  of  the  Jewish  people.  The  entire  life  of  the 
people  in  all  its  possible  situations  should  be  guided  and 
controlled  by  no  other  authority  than  the  Law  as  inter- 
preted by  the  teachers,  whether  priest  or  layman.^^ 

Acknowledging  the  Law  of  the  fathers  to  be  the  sole 
authority,  these  lay  teachers  now  had  to  find  all  the 
decisions  and  rules  necessary  for  the  practical  life  of  their 
time  contained  or  implied  in  the  Law.     They  also  had  to 

S'  For  further  details  about  the  attitude  of  each  group  towards  the  Law 
tee  my  Sadducees  and  Pharisees. 


MIDRASH    AND    MISHNAH  6l 

devise  methods  for  connecting  with  the  Law  all  those  new 
decisions  and  customs  which  were  now  universally  observed 
by  the  people,  thus  making  them  appear  as  part  of  the 
laws  of  the  fathers. 

There  were  two  methods  by  which  they  could  accom- 
plish this  result.     The  one  was  to  expand  the  Midrash  of 
the  Soferim,  that  is  to  develop  the  method  of  interpretation 
used  by  the  Soferim  and  to  invent  new  exegetical  rules,  by 
means  of  which  they  could  derive  new  decisions  from  the 
written  Law,  and  find  sanction  therein  for  various  accepted 
practices.     The  other  method  was  to  enlarge  the  definition 
of  the  term  '  Law  of  the  Fathers ',  so  as  to  mean  more  than 
merely  the  written  Book  of  the  Law  with  all  its  possible 
interpretations.     In  other  words,  it  meant  a  declaration  of 
the  belief  that  not  all  the  laws  of  the  fathers  were  handed 
down  in  the  written  words  of  the   Book,  but   that  some 
religious  laws  of  the  fathers  were  transmitted  orally,  inde- 
pendently of  any  connexion  with  the  Book.    Either  method, 
to  an  extent,  meant  a  departure  from  the  old,  traditional 
point  of  view,  a  course  which  the  teachers  naturally  hesitated 
to  take.      In  spite  of  considerable  reluctance,  the  teachers 
gradually  were  led  to  make  use  of  both  of  these  methods. 
At  first  they  attempted  to  expand  the  Midrash,  the  form 
which  they  were  accustomed  to  use.     They  developed  new 
methods  of  interpretation  by  which  they  could  derive  from 
the  Law  new  decisions  for  current  cases  and  even  justify 
some  of  the  existing  practices  and  find  scriptural  support 
for  some  decisions  which  had  originally  been  given  without 
reference  to  the  written  Law.     However,  the  enlarged  use  of 
new  and  more  developed  Midrash  methods  was  not  sufificient 
to  secure  proofs  for  all  necessary  decisions  and  find  scriptural 
authority  for  all  existing  laws  and  accepted  practices. 


62  MIDRASH    AND    MISHNAH 

There  were  many  practices,  generally  accepted  by  the 
people  as  part  of  their  religious  life,  for  which  even  the 
developed  Midrash  with  its  new  rules  could  find  no  support 
or  proof  in  the  written  Law.  This  was  especially  the  case 
with  such  decisions  and  practices  as  originated  in  the  time 
after  the  Soferim,  In  the  opinion  of  the  teachers,  the 
origin  of  these  laws  and  customs  was  Jewish.  They 
reasoned  thus  :  It  is  hardly  possible  that  foreign  customs 
and  non-Jewish  laws  should  have  met  with  such  universal 
acceptance.  The  total  absence  of  objection  on  the  part 
of  the  people  to  such  customs  vouched  for  their  Jewish  origin, 
in  the  opinion  of  the  teachers.  Accordingly,  the  teachers 
themselves  came  to  believe  that  such  generally  recognized 
law's  and  practices  must  have  been  old  traditional  laws  and 
practices  accepted  by  the  fathers  and  transmitted  to  fol- 
lowing generations  in  addition  to  the  written  Law.  Such 
a  belief  would  naturally  free  the  teachers  from  the  necessity 
of  finding  scriptural  proof  for  all  the  new  practices.  They 
could  teach  them  as  traditional  Halakot  not  dependent 
upon  the  written  Law,  that  is  to  say — in  the  IVIishnah-form. 

However,  the  theory  of  an  authoritative  traditional  law 
(which  might  be  taught  independently  of  the  Scriptures) 
was  altogether  too  new  to  be  unhesitatingly  accepted. 
Although  it  may  be  safely  assumed  that  the  fathers  of  the 
Pharisaic  party  did  not  originally  formulate  the  theory  of 
an  oral  law  in  the  same  terms  and  with  the  same  boldness 
with  which  it  was  proclaimed  by  the  later  Pharisaic  teachers, 
still  even  in  its  original  form  the  theory  was  too  startling 
and  novel  to  be  unconditionally  accepted.  Even  those 
teachers  who  later  became  the  advocates  of  the  so-called 
oral  law  could  not  at  first  become  easily  reconciled  to  the 
idea  that  some  laws  had  been  handed  down  by  tradition, 


MIDRASH    AND    MISHNAH  63 

side  by  side  with  the  written  law  and  equal  in  authority  to 
the  latter.  Accordingly,  these  teachers  applied  the  term 
'  Traditional  Law  '  only  to  such  practices  and  rules,  whose 
religious  authority  was  unquestioned  and  whose  universal 
acceptance  went  back  to  the  time  before  the  memory  of 
living  men.^^  The  absence  of  objection  to  any  such  law  or 
custom  pointed  in  itself  to  an  old  Jewish  tradition  as  its 
source,  so  that  the  teachers  were  justified  in  believing  it  to 
be  a  genuinely  traditional  law.  But  even  in  the  case  of 
such  generally  accepted  rules  and  practices,  it  was  only  as 
a  last  resort  that  the  teachers  would  present  them  inde- 
pendently as  traditional  laws.  They  preferred  to  resort  to 
the  developed  methods  of  interpretation,  which,  although 
also  new  and  also  a  departure  from  the  older  Midrash, 
were  yet  not  so  startling  as  the  idea  of  declaring  a  new 
source  of  authority  for  religious  laws  in  addition  to  the 
written  Torah,  Wherever  there  was  the  remotest  possi- 
bility of  doing  so,  they  would  seek  by  means  of  new 
hermeneutical  rules  to  find  in  the  words  of  the  Torah 
support  for  these  traditional  laws.  They  could  thus 
continue  to  teach  them  in  connexion  with  the  written  Law, 
that  is  in  the  Midrash-form,  as  of  old.  Only  in  a  very  few 
cases,  when  it  was  absolutely  impossible  to  establish  by 
means  of  the  Midrash  any  connexion  between  the  tradi- 
tional practice  and  the  written  Law,  would  they  teach  the 
same  as  independent  traditional  Halakah,  that  is  to  say,  in 

^2  It  might  perhaps  be  said  that  the  theory  grew  and  forced  itself  upon 
the  teachers  without  any  intention  on  their  part  to  formulate  it.  They 
could  not  ignore  certain  practices,  considered  by  the  people  to  be  religious. 
They  had  to  teach  them.  Since  they  could  not  trace  tiieir  origin,  they 
assumed  that  they  were  traditions  of  the  fathers.  It  was  but  one  step, 
almost  an  unconscious  one,  from  this  to  the  declaration,  that  the  fathers 
received  their  traditional  laws  together  with  the  written  Law. 


64  MIDRASH    AND    MISHNAH 

the  Mishnah-form.'^'     This,  no  doubt,  was  the  very  first  use 
made  of  the  Mishnah-form. 

However,  in  this  first  introduction  of  the  new  form  with 
its  very  h'mited  use  lay  the  possibiHty  of  a  much  wider  and 
more  general  application.  Once  it  was  conceded  that, 
when  absolutely  necessary,  a  form  of  teaching  other  than 
the  Midrash  could  be  used,  it  became  merely  a  question 
of  what  to  consider  a  case  of  necessity.  This  varied  with 
the  individual  teacher.  To  some  teachers,  the  Mishnah- 
form  appealed  even  where  the  Midrash-form  was  possible, 
but  not  acceptable,  as,  for  instance,  when  the  interpretation 
of  Scriptures  offered  in  support  of  the  decision  was  not 
approved.  For  even  the  developed  Midrash  methods  and 
the  new  rules  of  interpretation  were  not  all  of  them  accepted 
by  all  the  teachers.  Some  teachers  would  go  further  than 
the  others.  It  often  happened  that  rules  and  interpretations 
offered  by  one  teacher  would  be  rejected  by  another.  We 
may  presume  that  it  often  happened  that  one  teacher 
would  try  by  means  of  a  new  interpretation  to  support 
a  decision  from  Scripture,  while  other  teachers,  although 
rejecting  that  particular  interpretation,  would  accept  the 
decision,  either  because  of  the  authority  of  that  teacher 
or  because  it  was  accepted  by  the  majority.  These  other 
teachers  of  course  could  not  teach  such  a  decision  in  the 
Midrash-form,  because  they  rejected  the  particular  Midrash 
furnished  for  the  decision.  They  were  compelled  to  teach 
such  a  decision  as  an  abstract  Halakah,  that  is,  in  the 
Mishnah-form.  Fortunately,  we  have  positive  proof  that 
such  instances  did  occur.     This  actually  happened   in  the 

^2  Accordingly  the  Midrash  alwa3'S  remained  the  main  form  of  teaching 
and  the  Mishnah  only  gradually  came  to  be  used  alongside  of  it  (see  above, 
notes  8  and  22). 


MIDRASH    AND    MISHNAH  65 

case  of  the  oldest  Halakot  preserved  to  us  in  the  Mishnah- 
form,  namely,  the  Halakot  of  Jose  ben  Joezer.  As  will 
presently  be  shown,  these  decisions  were  taught  by  the 
teachers  as  independent  Halakot  in  the  name  of  Jose, 
because  the  interpretations  given  by  Jose  in  their  support 
were  not  approved  by  the  other  teachers.  To  prove  that 
this  was  the  case,  we  have  to  examine  these  Halakot  in 
order  to  ascertain  their  exact  meaning,  also  Jose's  share 
in  them,  and  the  attitude  of  the  other  teachers  towards 
them. 

These  Halakot  arc  found  in  the  Mishnah,  Eduyot  Vni,4, 
and  they  read  as  follows  : 

.xnc'  ''Dv  ri'b  n?i  .nxnoro  Nnv:^a  mpm  p'^i  (;i:^Nn)  s\-aLjn  '2 

Jose  ben  Joezer  of  Zeredah  stated  regarding  the  Ayyal 
Kamsa  [a  certain  species  of  locust]  that  it  is  to  be  considered 
as  clean  (i.e.  permitted  to  be  eaten),  and  regarding  the 
liquids  of  the  slaughtering  place,  that  they  are  to  be 
considered  as  clean,  and  that  [only]  that  which  has  come 
into  direct  contact  with  a  dead  body  becomes  unclean.  And 
they  [the  other  teachers]  called  him  'Jose  the  Permitter'. 
There  are  a  few  difficulties  in  these  Halakot  which  we  must 
point  out  before  we  can  get  at  their  full  meaning  and 
demonstrate  their  bearing  upon  our  theory. 

The  first  strange  feature  in  these  Halakot  is  their 
language.  They  are  given  in  Aramaic  and  not  in  Hebrew, 
in  which    all   other    Halakot  of  the    ]\Iishnah   are  given. ^* 

^*  There  is  no  other  halakic  decision  in  the  I\Iishnah  expressed  in  the 
Aramaic  language.  The  Aramaic  saying  of  Hillel  (Abet  I,  13)  was  either 
uttered  by  Hillel  while  he  was  still  in  Bab3'lon,  or  because  it  was  addressed 
to  the  people  as  a  popular  saying  it  was  given  in  Aramaic  which  was  then 
already  the  language  of  the  people.  The  latter  reason  would  also  account 
for  the  other  two  sayings  in  Abot  V,  22-3  given  in  the  Aramaic  language. 
L.  F 


66  MIDRASH    AND    MISHNAH 

Weiss  tries  to  account  for  the  Aramaic  language  of  these 
Halakot  by  assuming  that  they  were  remnants  of  the 
teachings  and  decisions  of  the  Soferim  {Dor,  I,  p.  66),  who 
according  to  his  assumption  delivered  all  their  teachings  in 
the  Aramaic  language  ^^  (Introduction  to  Mekilta,  p.  iv). 
Jose,  according  to  Weiss,  merely  attested  to  these  decisions, 
but  did  not  originate  them.  This  explanation,  however, 
rests  upon  false  premises.  In  the  first  place,  if  the  Aramaic 
of  these  Halakot  was  due  to  their  being  decisions  of  the 
Soferim,  we  ought  to  find  many  more  Halakot  in  the 
Mishnah  in  the  Aramaic  language.  For  there  are  certainly 
more  teachings  of  the  Soferim  preserved  in  our  Mishnah. 
Weiss  himself  points  out  {Dor,  I,  p.  6^)  many  Mishnahs 
which,   in  his  opinion,  are  very  old  and  originated  in  the 

^5  It  is  surprising  to  find  that  Weiss  not  only  contradicts  himself,  but 
also  reasons  in  a  circle.  He  himself  mentions  many  proofs  for  assuming 
that  Hebrew  was  used  by  the  majority  of  the  people  and  by  the  Soferim. 
He  has  absolutely  no  reason  for  assuming  that  the  Soferim  taught  in 
Aramaic.  However,  just  because  these  three  decisions  of  Jose  are  ex- 
pressed in  Aramaic,  and  because  in  his  opinion  Jose  received  these  decisions 
in  their  form  and  in  their  language  from  the  Soferim,  he  concludes  that 
the  Soferim  must  have  taught  in  Aramaic.  And  as  a  proof  for  his  opinion 
that  these  decisions  are  from  the  Soferim  he  can  only  cite  the  fact  that  they 
are  expressed  in  Aramaic,  which,  in  his  opinion,  was  the  language  of  the 
Soferim.  Weiss  here  follows  Krochmal  who  assumes  (in  More  Nebitke 
Hasemaii,  X,  pp.  52-3)  that  the  language  of  the  people  in  the  time  of 
Ezra  was  Aramaic.  Both  Krochmal  and  Weiss  seem  to  have  been  misled 
by  thehaggadic  interpretation  of  the  passage  in  Neh.  8.  8,  given  in  b.  Nedarim 
37  b,  QlJin  ni  Cm^IO,  which  they  understood  to  refer  to  an  Aramaic 
translation.  Following  this  Haggadah,  they  assume  that  as  early  as  the 
time  of  Ezra  the  Torah  had  been  translated  into  the  Aramaic  (see  Krochmal, 
/.  c,  and  Weiss,  Dor,  I,  p.  54  ;  compare  also  Friedmann,  Onkclos  and  Akylas, 
Wien,  1896,  p.  58).  Hence  they  argue,  if  an  Aramaic  translation  was 
necessary,  then  the  language  of  the  people  must  have  been  Aramaic.  But 
this  is  a  mistake.  There  was  no  translation  of  the  Torah  in  the  time  of 
Ezra,  as  the  people  spoke  Hebrew,  the  language  in  which  the  Torah  was 
written. 


MIDRASH    AND    MISHNAH  67 

time  of  the  Soferim.  Why  is  it  then  that  this  one  Soferic 
saying  transmitted  by  Jose  has  been  retained  in  the  original 
language,  the  Aramaic,  while  all  the  other  teachings  of  the 
Soferim,  which  no  doubt  are  preserved  in  our  Mishnah, 
have  been  translated  into  the  later  Hebrew  P^*^  Further- 
more, the  whole  premise  that  the  Soferim  gave  their  teach- 
ings in  Aramaic,  declared  by  Weiss  (Introduction  to  the 
Mekilta,  ibid)  to  be  beyond  doubt,  is  absolutely  false.  All 
indications  point  to  the  fact  that  the  Soferim  gave  their 
teachings  in  Hebrew,  the  language  which  the  people  spoke. 
The  exiles  who  returned  from  Babylon  did  not  bring  with 
them  the  Aramaic  language.  They  spoke  Hebrew,  as  is 
evident  from  Xeh.  13.  34,  where  Nehemiah  complains  that 
some  of  the  children  were  unable  to  speak  the  Jewish 
language,  that  is  Hebrew.  It  certainly  cannot  be  assumed 
that  the  Soferim,  as  teachers  of  the  people,  would  set  the 
bad  example  of  using  any  language  other  than  their  own.^" 
The  Aramaic  language  came  into  use  among  the  people  in 
Palestine  at  a  much  later  date  °^  (see  Schlirer,  GescIiicJite^ 

5^  According  to  Weiss,  then,  we  would  have  to  account  for  another 
radical  change  in  the  method  of  teaching,  name!}',  the  change  in  the 
language,  the  medium  of  instruction,  from  the  Aramaic  to  the  later  Hebrew, 
and  one  would  have  to  fix  the  lime  and  find  the  reason  for  the  change. 

5"  Weiss  himself  says  {Dor^  I,  p.  54)  that  Nehemiah  and  the  earlier 
Soferim  endeavoured  to  keep  up  the  Hebrew,  and  only  some  of  the  people 
did  not  understand  Hebrew  perfectly.  But  if  so,  why  did  the  Soferim  give 
all  their  teachings  in  Aramaic? 

^8  Schurer  points  out  that  the  Aramaic  of  Palestine  could  not  have  been 
brought  along  by  the  returning  exiles,  as  the  Aramaic  spoken  in  Palestine 
was  the  Western  Aramaic  and  not  the  Eastern  Aramaic  spoken  in  Babj'lon. 
Friedmann  {op.  cit.,  p.  57'  assumes  that  the  language  of  the  returning  exiles 
was  the  Babj'lonian  Aramaic,  but  that  in  the  course  of  time  this  language 
was  changed  and  influenced  by  the  Aramaic  of  Palestine.  This  assumption 
is  without  proof.  The  proofs  cited  by  Friedmann  for  the  use  of  the  Aramaic 
language  do  not  prove  anything  with  regard  to  the  time  of  the  Soferim. 

F  a 


•68  MIDRASH    AND    MISHNAH 

IP,  pp.  23-6.  Even  after  the  Aramaic  language  had 
become  the  language  of  the  people,  Hebrew  remained  the 
language  of  the  school  and  the  teachers,  the  CCSn  IVJ'7. 
For  this  reason  we  have  all  the  Halakot  in  the  tannaitic 
literature,  such  as  Mishnah  and  halakic  Midrashim,  given 
in  Hebrew. 

Aside  from  all  these  considerations  as  to  the  language 
•of  the  Soferim,  it  is  altogether  wrong  to  connect  these  three 
Halakot  with  the  Soferim.  They  are  not  Halakot  of  the 
Soferim,  which  Jose  merely  transmitted  and  attested  to, 
they  are  decisions  which  originated  with  Jose  himself  and 
for  which  he  offered  reasons  and  scriptural  proofs.  And 
this  brings  us  to  the  discussion  of  the  second  difficulty  in 
our  Mishnah,  namely,  the  introductory  term  T]:n.  This 
term  T'yn  means  literally  to  testif}^,  to  state  as  a  witness 
what  one  knows  or  has  seen  or  heard.  Some  scholars  have 
understood  the  term  TV^  in  this  Mishnah  in  this  very 
sense,  and  have  declared  it  to  mean  that  Jose  merely 
testified  that  these  decisions  were  older  traditional  laws 
and  practices.  As  we  have  seen  above,  Weiss  assumed 
that  they  were  decisions  of  the  Soferim  for  the  genuineness 
of  which  Jose  vouched.  But  it  is  absolutely  incorrect  to 
take  the  term  l^V^  here  in  the  sense  that  Jose  merely 
'  testified  '  to  older  traditional  laws  and  decisions.     As  far 

The  Aramaic  became  the  language  of  the  Jews  in  Palestine  in  the  first  half 
of  the  second  century  b.  c.  The  proofs  adduced  by  Friedmann  (/.  c,  p.  58) 
refer  to  a  much  later  date  than  the  second  century  B.C.  Saadya  Gaon,  in 
the  preface  to  his  Sefer  Ha-Iggaron  (Harkavy,  Zikron  la-Ris/ioniin,Y,  p.  54), 
states  that  about  three  years  before  the  rule  of  Alexander  in  Palestine  the 
Jews  began  to  neglect  Hebrew  and  adapted  the  language  of  the  other 
nations  in  the  land  (i.  e.  Aramaic).  While  his  date  is  based  upon  a  wrong 
chronology  (see  pp.  113  ff.),  he  certainly  is  correct  in  his  statement  as  to 
the  fact  that  the  returning  exiles  spoke  Hebrew  and  that  it  was  onl^'  after 
many  3'ears  that  they  began  to  speak  Aramaic. 


MIDRASH    AND    MISHNAH  69 

as  we  know,  the  method  of  procedure  followed  by  the 
teachers  of  the  Halakah  hi  receiving  a  teacher's  testimony 
in  regard  to  some  rule  or  practice  was  to  consider  the 
testimony  alone.  They  either  decided  according  to  it,  or 
if  for  some  reason  they  would  not  do  so,  they  stated  that 
reason.  Without  reflecting  upon  the  testifying  teacher, 
they  would  seek  to  invalidate  the  testimony  or  to  deny 
its  bearing  upon  the  case  under  discussion  (compare  Eduyot 
II,  2  ;  VIII,  3  ;  Sanhedrin  VII,  2  ;  and  Tosefta  Sanhedrin 
IX,  11).  Nowhere  do  we  find  that  they  hold  the  testi- 
fying teacher  responsible  for  the  decision  which  he  reports.'^^ 

^^  The  case  of  Akabiah  b.  Mahalalel  (M.  Eduyot  V,  6)  whom  the  other 
teachers  held  responsible  for  the  decisions  which  he  stated  before  them, 
cannot  be  cited  as  an  instance  against  this  statement.  It  is  doubtful,  to  say 
the  least,  whether  the  four  decisions  of  Akabiah,  although  likewise  introduced 
with  the  term  T'J?n,  were  old  traditional  Halakot  to  which  he  merely 
testified. 

The  controversy  between  Akabiah  and  the  other  teachers  is  shrouded 
in  mystery.  The  later  teachers,  for  reasons  best  known  to  themselves, 
did  not  care  to  report  about  it  in  detail.  They  acknowledged  only  with 
reluctance  that  there  were  disputes  among  the  older  teachers  about  the 
traditional  laws,  that  such  an  eminent  teacher  as  Akabiah  protested  against 
what  was  accepted  by  others  as  traditional  laws,  and  that  harsh  means 
were  used  to  silence  such  protests.  The  knowledge  of  these  facts  would 
reflect  unfavourably  upon  the  validity  of  the  traditional  law.  For  this 
reason  one  of  the  later  teachers  also  denied  the  fact  that  Akabiah  was  put 
under  ban  {ibid.).  From  the  meagre  reports  preserved  in  our  sources  it  is 
difficult  to  obtain  a  clear  account  of  the  nature  of  the  dispute  and  of  what 
actually  took  place  between  Akabiah  and  the  other  teachers.  It  is,  however, 
very  probable  that  Akabiah  was  the  author  of  these  four  decisions,  and  that 
the  term  T'yn  in  this  case  is  likewise  to  be  taken  in  the  sense  of  'stated', 
'declared',  and  not  'testified'.  This  is  apparent  from  the  very  demand 
to  retract  which  the  other  teachers  made.  They  could  not  have  asked  him 
to  take  back  his  testimony,  but  they  could  ask  him  to  change  his  opinion. 
From  the  expression  used  in  this  demand  to  retract,  Dn^T  nj?2"lND  13  lltn 
"IDIX  n^TI-',  it  is  also  evident  that  Akabiah  was  his  own  authority  in  these 
four  decisions,  that  he  was  the  one  who  said  these  things,  and  not  that  he 
merely  testified  that  others  said  them.     Again,  in  his  advice  to  his  son  to 


70  MIDRASH    AND    MISHNAH 

Here,  in  the  case  of  Jose,  however,  we  see  that  they  called  Jose 
Nna'  'the  Permitter',  thus  making  Jose  responsible  for  the 
decisions.  If  Jose  had  been  merely  testifying  to  the  decisions 
of  former  teachers,  then  those  former  teachers,  the  Soferim 
or  whoever  they  may  have  been,  were  the  ones  who 
*  permitted  ',  and  not  Jose.  Why,  then,  call  Jose  Nn'J'  '  the 
Permitter '  ? 

This  is  even  more  strange  since  we  do  not  hear  that  the 
other  teachers  gave  any  argument  against  his  decisions 
and,  as  we  shall  see,  they  even  accepted  them  nripn?  '  as 
a  norm  of  practice  '.^°  It  is  therefore  evident  that  these 
Halakot,  though  introduced  with  the  phrase  "DV  n^yn,  were 

follow  the  majority,  Akabiah  uses  the  words  T'n\T  ^121  IT'^n!?  3D1tD 
Q^31"\Cn  """l^l^  TinNS  '  It  is  better  to  abandon  the  opinion  of  an  individual 
and  to  hold  to  the  opinion  of  the  many'  {ibid.,  f).  From  these  words  it  is 
also  evident  that  the  decisions  of  Akabiah  were  the  opinion  of  an  individual 
teacher  (i.  e.  himself),  and  not  the  opinion  of  the  majority  of  the  teachers 
from  whom  Akabiah  received   them.     We  must  therefore  assume  that  the 

words  Tiyio-'n  Tncy  •'ix  . . .  canr^n  '•dd  ^nyot'  -jn  (jLid.  7),  which 

are  put  into  Akabiah's  mouth,  are  a  later  addition.  They  form  an  attempt 
on  the  part  of  a  later  teacher  to  minimize  the  sharpness  of  the  conflict 
between  Akabiah  and  his  contemporaries.  Its  purpose  was  to  make  it 
appear  as  if  there  had  always  been  perfect  harmony  among  the  teachers, 
and  that  only  in  this  case  each  had  a  different  tradition  which  he  had  to 
follow.  This,  however,  is  a  very  poor  attempt,  for  it  does  not  explain  how 
there  could  have  been  different  traditions.  It  only  shifts  the  date  of  the 
conflict  of  opinions  from  the  time  of  Akabiah  and  his  colleagues  to  the  time 
of  their  teachers  and  predecessors. 

It  is  also  possible  that  the  same  later  author  who  thus  attempted  to 
exonerate  Akabiah  added  the  word  Tyn,to  introduce  Akabiah's  decision, 
thus  representing  them  as  being  based  upon  an  older  tradition  which 
Akabiah  had. 

^0  Levy  erroneously  states  {Osar  Nehmad,  III,  pp.  29-30)  that  Jose's 
decisions  were  ignored  by  the  other  teachers.  From  the  talmudic  discussion 
Pesahim  16  a  (comp.  also  Maimonides,  Yad.  Tum'at  Oklin,  X,  16)  and 
Abodah  zarah  37  a  b  it  is  evident  that  the  decisions  of  Jose  were  accepted 
by  the  other  teachers  and  made  the  norm  for  practice,  PID^riA 


MIDRASH    AND    MISHNAH  7I 

not  older  traditional  laws  transmitted  by  Jose  as  a  mere 
witness,  but  Jose's  own  teachings.  He  was  the  one  who 
'permitted',  and  he  deserved  the  name  sn'i:'.  This  is 
further  confirmed  by  the  discussions  of  the  Amoraini  in 
the  Talmud  who  try  to  explain  these  decisions.  Rab  and 
Samuel  in  attempting  to  give  a  reason  for  one  decision  of 
Jose's,  use  the  word  13Dp  '  he  (Jose)  held ',  or  '  was  of  the 
opinion'.  And  when  the  reason  for  another  decision  is 
asked,  the  phrase  '':^2''cp  "'son  '  in  what  do  they  (Jose  and 
his  opponent  or  opponents)  differ'  is  used  (Abodah  zarah 
37  a,  b).  Again,  when  R.  Papa  ventured  to  say  in  regard 
to  one  of  the  decisions  that  it  was  an  old  traditional  law, 
TV  nn^J  Nnn7\n,  he  was  promptly  refuted  (Pesahim  17  b). 
Thus  we  see  that  in  the  talmudic  discussions  about  these 
decisions  they  arc  taken  as  Jose's  own  teachings  and  not  as 
older  traditional  laws. 

This  correct  interpretation  removes  all  the  difficulties 
from  our  Mishnah.  The  term  T'yn  is  to  be  taken  here  in 
the  sense  of  'declared',  or  'stated'.  The  Aramaic  in  which 
these  decisions  are  expressed  is  to  be  accounted  for,  not  by 
their  alleged  origin  in  the  early  days  of  the  Soferim,  but 
rather  by  the  comparatively  late  date  at  which  they  origi- 
nated. It  is  probably  also  due  to  the  peculiar  circumstances 
which  gave  tliem  their  present  form.  These  decisions,  as 
we  have  them,  are  not  preserved  to  us  in  Jose's  own  words, 
nor  in  the  form  in  which  he  gave  them.  Jose  gave  these 
decisions  in  Hebrew  and  in  Midrash-form.  He  taught  them 
in  connexion  with  the  several  Scriptural  passages  on  which 
he  based  the  decisions.  The  teachers,  however,  who  trans- 
mitted these  decisions,  for  reasons  of  their  own  (to  be  stated 
below),  detached  these  decisions  from  their  scriptural  bases 
and  expressed  them  in  the  Aramaic  language.     That  Jose 


72  MIDRASH    AND    MISHNAH 

had  scriptural  proofs  for  his  decisions,  is  evidenced  by  the 
fact  that  the  Amoraim  in  the  Tahnud  endeavour  to  find 
these  proofs  or  reasons.  Evidently  the  Amoraim  were 
convinced  that  some  scriptural  proofs  did  underlie  these 
decisions,  although  not  mentioned  by  the  teachers  who 
transmitted  them.  By  following  the  Amoraim,  whose 
analysis  of  these  Halakot  probably  echoes  older  tradition, 
we  will  be  able  to  find  the  midrashic  proofs  given  by  Jose 
in  support  of  his  decisions. 

In  the  case  of  one  decision  the  midrashic  arguments  of 
Jose  and  his  opponents  have  fortunately  been  preserved, 
namely,  in  the  case  of  the  third  decision  which  is  n~ipm 
axriDD  i<n''t:n  '  one  who  touches  a  corpse  becomes  unclean '. 
We  must  first  arrive  at  the  correct  meaning  of  the  decision. 
This  decision  does  not  mean  simply  that  one  who  touches 
a  corpse  becomes  unclean,  for  this  is  expressly  stated  in  the 
Bible  in  regard  to  a  human  corpse  (Num.  19.  11)  as  well  as 
in  regard  to  the  carcase  of  an  animal  (Lev.  ji.  37  and  29) 
or  a  reptile  {ibid.,  31).  Furthermore,  Jose  is  called  '  the 
Permitter ',  evidently  because  in  all  three  decisions  he 
permits  things  that  were  formerly  considered  forbidden. 
He,  therefore,  could  not  mean  to  teach  us,  in  this  last 
decision,  concerning  what  becomes  unclean  and  therefore 
forbidden.  We  arrive  at  the  correct  meaning  of  this 
decision  by  emphasizing  the  word  xn^cn  ^^  and  interpreting 

^^  Frankel  {Hodegctica,  p.  32)  explains  the  decision  of  Jose  to  mean 
that  Jose  decided  that  one  who  has  come  into  direct  contact  with  a  corpse 
becomes  unclean  bat  one  degree  less  than  the  corpse  itself,  i.  e.  he  becomes 
an  HNOIDn  aX  and  not  an  HNrOIOH  mnx  ^QS*.  Frankel  bases  his  ex- 
planation on  the  expression  2SnDD  '  becomes  unclean  ',  since  it  is  not  said 
3ND70,  which  could  mean  also  'he  makes  unclean '.  But  this  explanation 
is  wrong.  In  the  first  place,  if  the  T\122  yjlJ  becomes  onl^'  an  HNOmn  3X 
he  could  still  make  others  unclean,  and  thus  be  a  DND'O  and  not  merely  a 


MIDRASH    AND    MISHNAH  73 

it  to  mean  '[only]  he  who  touches  a  dead  body'  (of  a 
human  being  or  an  animal  or  a  reptile)  becomes  unclean', 
but  one  who  touches  a  thing  or  person  that  has  itself 
become  unclean  by  contact  with  a  corpse  (i.e.  nnpnn  n-ipn)'^^ 
does  not  become  unclean.  This  interpretation  of  Jose's 
third  decision  is  given  in  the  Talmud  (Abodah  zarah  37  b) 
and  is  correct  despite  the  objections  raised  by  Raba.  As 
stated  correctly  in  the  Talmud  {ibid.),  the  other  teachers 
before  and  during  the  time  of  Jose  were  of  the  opinion  that 

2SnD?D.  Secondly,  as  Weiss  {Dor,  I,  p.  100,  note)  pointed  out,  tlie  reading 
2XnDD  is  not  genuine,  some  editions  having  indeed  3ND?0.  Moreover, 
3NDD  does  not  mean  'makes  unclean',  but  simply  'is  unclean'.  Jose's 
decision  probably  was  that  one  can  become  unclean  onl3'  by  direct  contact 
with  a  corpse,  the  emphasis  being  on  XJT'Cn.  If,  however,  one  touches 
a  thing  or  another  person  that  had  become  unclean  by  contact  with  a  corpse, 
he  does  not  become  unclean,  because  he  did  not  come  in  direct  contact 
with  the  corpse. 

•^2  The  later  talmudic  teachers  seek  to  harmonize  Jose's  decision  with 
the  later  teachings  of  the  Halakah.  They  therefore  modify  the  meaning 
of  the  term  2">p^n3  3~lpn ,  and  explain  it  so  as  to  agree  with  the  later 
teachings  of  the  accepted  Halakah.  But  the  original  meaning  of  the  term 
2"lpn3  nipn,  which  is  apparently  identical  with  the  phrase  DIX  J?: J 
niNOD  yj?23  in  Sifra,  was  altogether  different  from  the  meaning  given 
to  it  in  the  talmudic  discussion.  To  harmonize  Jose's  decision  with  the 
later  teachings  of  the  Halakah,  one  could  interpret  it  to  mean  that  only 
certain  kinds  of  inpHQ  3~lpn  are  clean.  That  is  to  say,  Jose  declared 
that  not  everything  that  has  been  in  contact  with  a  corpse  can  make 
a  person  that  touches  it  unclean.  Jose,  then,  meant  to  exclude  earth, 
stone,  and  wood.  His  decision  accordingly  was  directed  against  an  older 
Halakah  which  declared  that  one  who  touches  wood,  stone,  or  earth  that 
has  become  defiled  by  contact  with  a  corpse,  becomes  unclean.  Such  an 
old  Halakah  seems  to  be  expressed  in  the  '  Fragments  of  a  Zadokite  Work' 
(Schechter,  Documents  of  Jewish  Sectaries,  vol.  I,  p.  12,  lines  15-17).  Compare, 
however,  Ginzberg's  ingenious  explanation  of  this  passage  in  the  Monats- 
schrift,  1912,  pp.  560-61).  It  seems,  however,  more  probable  that  Jose 
declared  every  kind  of  ^IpH^  QlpH  clean,  even  a  person  who  touches 
another  person  who  had  become  defiled  by  contact  with  a  corpse.  Jose, 
then,  is  against  the  later  teachings  of  the  Halakah  that  a  TiO  X?2D  becomes 
an  nNC"it2n  nX  and  can  make  others  unclean.     See  below,  note  64. 


74  MIDRASH    AND    MISHNAH 

aipnn  3ip''n,  one  who  touches  a  person  who  has  become 
unclean  by  contact  with  a  corpse,  also  becomes  unclean, 
Nir'nisno,  according  to  the  Law.  They  must  have  derived 
their  opinion  either  from  a  literal  interpretation  of  the 
passage  in  Num.  19.  22,  xr^D"'  s?20n  13  yr  l-'wS*  b^,  as  stated 
in  the  Talmud  (idid.)  or,  what  is  more  likely,  from  the 
passage  in  Lev.  5.  2,  ncd  im  b^n  y:n  tj'S  ^^:  Mi,  which 
literally  means  one  who  touches  any  object  that  is  unclean. 
This  apparently  includes  one  who  touches  an  object  which 
has  become  unclean  through  contact  with  a  corpse.  This 
seems  to  me  to  have  been  the  scriptural  basis  for  their 
theory.  But  Jose  interpreted  this  scriptural  passage  differ- 
ently, so  that  he  could  give  his  decision,  permitting  a 
aipnn  mpn,  and  declaring  such  a  one  as  clean. 

Indeed,  we  find  these  two  opposing  views  preserved  in 
Sifra,  Hobah,  XII,  ed.  Weiss  22  d.  There  we  read  as  follows : 
DnoiN*  rn  D-iVj'snn  D^:pTn  ^12^  nm  ^jn  yjn  -i*.:^n*  :;'S3  is 
nb:n  n^n  rhiii  Vt\  n"'^-I  x.T'  nixroD  y:r:^n  mx  yjj  nx  ib^sx  h\y^ 
nxciDH  nx  pXw'  nm  x^"'  nx?:it:n  nnx  nnu'  pinv?:^  i^x  no  ncnn 
'Or  if  a  person  touches  any  unclean  thing '  (Lev.  5.  2). 
The  former  teachers  said  :  '  One  might  argue  [from  the 
expression  "any  unclean  thing"]  that  even  if  a  person  has 
touched  anything  that  had  come  into  contact  with  unclean 
things,  he  should  also  be  [considered  unclean  and  conse- 
quently] subject  to  the  law  mentioned  in  this  passage. 
The  scriptural  text  teaches  us,  therefore,  [by  specifically 
mentioning]  "  whether  it  be  a  carcase  of  an  unclean  beast,  or 
a  carcase  of  unclean  cattle,  or  the  carcase  of  unclean  creeping 
things"  that  only  these  specific  objects  which  are  original 
causes  of  uncleanness  [can  by  their  contact  make  a  man 
unclean],  but  it  excludes  anything  else  which  is  not  an 
original  cause  of  uncleanness.'     The  term  ^A^'  '  one  might 


MIDRASH    AND    MISHNAH  75 

argue ',  points  to  an  actual  opinion  held  by  some  people, 
which  the  Midrash  seeks  to  refute.  As  the  view  of  the 
D^:vj\s"in  D^JpT  here  expressed  is  identical  with  the  view  of 
Jose,*'^  viz.:  that  only  Nn^nn  nipn  becomes  unclean,  the 
possible  opinion  introduced  by  b)2'<  refers  to  the  view 
actually  held  by  the  teachers  before  Jose,  or  by  those  who 
disputed  with  him.  We  can,  therefore,  ascertain  the  new 
method  used  by  Jose  from  the  interpretation  given  in  Sifra 
in  the  name  of  the  D^JVC'Nnn  D^JpT.  This  interpretation  says 
that  the  meaning  of  the  general  term  t<?::u  im  ^22  is  defined 
and  limited  by  the  following  special  terms  n^n  n^ni  n72n 
)'T:'  is  ,  so  as  to  include  only  the  latter  or  such  as  are  exactly 
like  them.  Accordingly  we  have  in  this  instance  for  the 
first  time  the  application  of  the  rule  of  n!?n  bb^l  pN  on^i  bb:: 
t:"iD3"j' n?^.  And  if  we  include  the  passage  pinv?:;  iPS*  rra  in 
the  original  Midrash,  which  however  is  doubtful,''*  Jose  or 

'"'5  The  identity  of  Jose's  decision  with  the  one  quoted  in  Sifra  in  the 
name  of  the  D'JICNin  D'JpT  is  also  assumed  by  Professor  I.  Levy  as  quoted 
by  S.  Horowitz  in  Sifre  Zutta,  Breslau,  1910.  p.  7,  note  5. 

"  It  seems  to  me  that  the  passage  nXJOIDH  DnS*  iHu'  jnnVC  "l^X  HO 
is  not  of  the  original  Midrash  of  the  D^JVJ'Kin  D^3p7,  but  a  later  addition. 
For,  if  it  had  been  a  part  of  the  Midrash  of  the  older  teachers,  then  R.  Akiba's 
Midrash  which  follows  it  would  not  have  added  anything  and  would  have 
been  entirely  superfluous.  The  original  Midrash  of  the  older  teachers 
closed  with  the  words  ]*TJ'  rh^:^  ,  .  .  PTl.  The  older  teachers  inter- 
preted this  scriptural  passage  as  a  L2121  ??^ ,  to  mean  only  what  is 
expressly  mentioned  in  the  special  term  L31WJ'  n)D  nhn  P-'^H  PX.  They 
excluded  even  nXJOIDH  TDX.  To  this  R.  Akiba  added  another  Midrash 
according  to  which  only  what  is  not  an  nSCltjn  3X  is  excluded.  If, 
however,  we  include  the  passage  nX?:)1L2n  nUX  IHC  pnnVrD  l\X  n?0  in 
the  original  Midrash  of  the  older  teachers,  we  must  assume  that  the  term 
nX?D"lDn  nnS  is  used  by  them  in  a  narrow  sense  to  designate  'the  original 
sources  of  uncleanness',  and  not  in  the  technical  sense  in  which  it  is  used 
usually  to  designate  a  certain  degree  of  uncleanness  (see  Horowitz, 
op.  cif.,  p.  8). 

That  the  D''JVL:'X"in   iD'^^pT    excluded    even    so-called    nXl31L:n   mZX  is 


76  MIDRASH    AND    MISHNAH 

the  a^3i::'S"in  D^Jpr  must  have  considered  the  following  passage 
ms  nxr^iu  b^l  y:-'  -il"s  is*  as  another  i^ba  and  formulated 
the  rule  tDisn  py3  si's  p  nnx  \x  b^ai  Di£l  ^5^3,  and  accord- 
ingly included  other  nsTVon  nUwS'  which  are  like  {^JT'O. 

From  a  comparison  of  the  explanation  given  to  Jose's 
first  decision  in  Abodah  zarah  37  a  with  Hullin  66  a  we 
learn  that  the  decision  declaring  xvr^P  ?^N  as  clean  was 
reached  by  Jose  also  by  means  of  applying  the  rule 
ij^31  t2"i3i  bb:i  to  include  nisn  py3  (see  Rashi  Ab.  zarah, 
ad  /oc,  and  Tosfot  Yomtob  to  Eduyot  VII,  8).  In  regard 
to  the  decision  about  the  N^na^a  ^2  npc'D,  it  is  hard  to  find 
out  by  what  means  Jose  derived  this  from  the  Scriptures, 
as  we  are  not  quite  sure  as  to  the  exact  meaning  of  this 
decision.  Even  the  later  Talmudic  teachers  held  different 
opinions  regarding  its  meaning.  According  to  Rab,  Jose's 
decision  declared  these  liquids  altogether  clean  and  not 
subject  to  defilement,  "w'nrD  pn,  while  according  to  Samuel 
the  decision  was  merely  that  these  liquids  cannot  com- 
municate to  others  their  defilement,  but  in  themselves  may 
become  defiled,  Dnnx  nN»"iu  Ncoi^n  pn  (see  Pesahim  17  a). 
Rab's  explanation  seems,  however,  to  be  more  plausible 
and  warranted  by  the  plain  sense  of  the  word  p"i  which 
means,  simply,  C'DD  pT.  In  this  case  we  may  safely  assume 
that  Jose  arrived   at    this  decision  also  by  means   of  the 

conceded  even  by  Rabed  in  his  commentary  on  Sifra,  ad  he.  (This  shows 
that  he  felt  the  difficulty  of  finding  a  difference  between  their  Midrash  and 
the  Midrash  of  R.  Akiba.)  Rabed,  however,  assumes  that  the  older  teachers 
decided  this  onl^'  with  regard  to  punishment  for  entering  the  sanctuary  in 
such  a  state  of  uncleanness,  B'npD  nS*''3  h>V  QrT'!?y  pa''"'n  pNI.  Levy,  as 
quoted  by  Horowitz,  follows  Rabed  herein.  But  it  is  very  unlikely  that 
the  older  teachers  made  such  a  distinction.  If  a  person  was  considered 
unclean  he  would  have  been  punished  for  entering  the  sanctuary  in  his 
state  of  uncleanness.  If  he  was  not  to  be  punished  for  entering  the 
sanctuary,  that  meant  he  was  not  at  all  unclean. 


MIDRASH    AND    MISHNAH  77 

method  of  using-  the  ni^l  bb  rule.  For  in  Lev.  11.  24, 
where  the  defilement  of  liquids  is  spoken  of,  it  is  said  : 
nd::''  ""b^l  nriu"'  T^'N  npc'?^  ^m.  Jose  saw  in  the  words  nnc"'  "TJ'N' 
'  which  is  drinkable  '  or  '  which  is  drunk  out  of  a  vessel ', 
a  limiting  special  term,  uns.  which  qualifies  and  limits  the 
general  term,  np'C'D  ^31,  and  excludes  from  the  latter  the 
N''n3'-:o  "2  np'>:"iD  which  '  is  not  drinkable  '  or  '  is  not  drunk 
out  of  a  vessel '.  In  the  same  way  Kliezcr  (in  Sifra, 
Shemini,  IX,  Weiss  ^^  a)  applies  this  principle  to  exclude 

Thus  we  find  that  Jose  derived  all  his  decisions  from 
the  Scripture  by  means  of  interpretations,  and  that  these 
interpretations  were  according  to  new  methods.  These 
new  methods,  however,  were  rejected  by  his  contemporaries, 
because  they  were  novel.  The  teachers  of  the  next  genera- 
tion and  possibly  even  some  of  his  colleagues,  respecting  the 
authorit}'  of  Jose,  accepted  his  decisions  but  hesitated  to 
recognize  the  validitv  of  the  new  rule  of  u~iD"i  ?-3  which 
Jose  used.  Since  they  did  not  accept  this  method  they 
could  not  teach  these  decisions  together  with  the  scriptural 

•'^  It  is  possible  that  in  the  sa3'ing  of  R.  Eliezer,  the  representative  of 
the  older  Halakah,  we  have  the  same  decision  which  was  given  by  Jose. 
Jose,  however,  directed  his  decision  to  a  certain  kind  of  undrinkable  liquid, 
the  NTinOD  ''2  np'J'D,  while  the  older  Halakah  as  represented  by  R.  Eliezer 
formulated  the  same  decision  in  a  general  way,  so  as  to  apply  it  to  all 
undrinkable  liquids,  PIIID  npi^'O.  Accordingly,  the  statement  of  Rab 
(Pesahim  17  a)  that  Jose  held  that  there  was  no  biblical  law  which  would 
subject  liquids  to  uncleanness,  Hlinn  |D  \''P''^rb  HSfriD  pX  "IDDp,  is  not 
correct.  Jose  excluded  only  undrinkable  liquids  from  these  laws.  It  is 
verjr  unlikely  that  as  early  as  the  time  of  Jose  there  \vas  a  rabbinical  law 
declaring  liquids  subject  to  uncleanness,  p3~n?D  \'^~.'^'\2?  riT'U.  It  should 
be  noticed  that  there  is  much  confusion  about  the  laws  of  pp'J'?^  nXTDIO, 
which  made  it  difficult  to  ascertain  the  real  meaning  of  Jose's  decision,  the 
more  so  as  the  later  teachers  sought  to  harmonize  it  with  the  later  halakic 
rulings  about  liquids. 


78  MIDRASH    AND    MISHNAH 

proofs  given  to  them  by  Jose.  They  therefore  merely 
mentioned  them  as  decisions  given  by  Jose.  They  would 
not  even  teach  them  in  Hebrew,  the  language  in  which 
they  taught  all  their  Halakot  connected  with  the  Scripture 
in  Midrash-form.  They  formulated  them  in  the  Aramaic 
language,  then  already  popular,  just  as  they  would  mention 
decisions  given  by  secular  authorities,  or  just  as  they  would 
refer  to  popular  customs  in  the  language  of  the  people, 
rather  than  in  the  language  of  the  school.'^''  For  this  reason 
they  introduced  these  Halakot  with  the  formula  "Dr  Tyn,*^' 
Jose  '  declared ',  or  '  stated ',  i.  e.  Jose  is  the  authority  for 
these  decisions;  and  they  properly  called  him  N'Il'  ''DV, 
'  Jose  the  Permitter '. 

On  the  same  principle  and  in  the  same  manner,  the 
teachers  dealt  with  another  decision  given  by  Jose  ben 
Joezer  and  his  colleague  Jose  ben  Johanan  of  Jerusalem, 
viz.  that  glassware  is  subject  to  the  laws  of  Levitical 
uncleanncss.  An  old  tradition  reports  that  the  two  Joses 
decreed  that  the  laws  of  uncleanness  apply  to  glassware, 
n-^lST  ""^3  bv  nN?;in  ni:  (Shabbat  15  a).     There  is  no  reason 

^^  In  the  Midrash  form,  when  the  Halakah  forms  a  sort  of  a  commentary 
on  the  Hebrew  text,  the  use  of  the  Hebrew  language  especially  recommended 
itself.  In  many  cases  the  comment  consisted  merely  in  emphasizing  the 
important  words  in  the  text,  or  in  calling  attention  to  a  peculiar  construction 
or  to  a  special  form.  All  these  peculiarities  of  the  Midrash  would  have 
made  it  very  difficult  to  use  another  language  than  Hebrew.  In  this  manner 
Hebrew  remained  the  CiODIl  p-7,  the  language  of  the  school.  It  con- 
tinued to  be  used  for  teaching  Halakah  even  when  the  latter  was  separated 
from  the  Hebrew  text  of  the  Scriptures  and  taught  independently-  in 
Mishnah-form. 

^■^  See  above,  note  30.  There  is  no  doubt  that  the,  introductory  formula 
T*!?!"!  was  added  by  a  later  teacher.  It  may  be  that  in  the  case  of  Jose, 
as  in  the  case  of  Akabiah  (see  above,  note  58)  the  later  teacher  who  added 
this  formula  meant  to  suggest  by  it  that  Jose  had  a  tradition  on  which  he 
based  his  decisions,  so  that  he  was  not  the  author  or  innovator  of  the  same. 


MIDRASH    AND    MISHNAH  79 

to  doubt  the  genuineness  of  this  report  in  the  Babylonian 
Talmud,  nor  are  there  any  reasons  for  ascribing  this  decree 
to  other  authors  as  Graetz  has  done.''^     The  reason  for  this 

"^  Graetz,  Geschichic,  III^,  p.  707,  is  inclined  to  ascribe  this  decree  about 
glassware  to  Simon  b.  Shetah  and  not  to  Jose  b.  Joezer.  He  bases  his 
theory  solely  on  the  passage  in  p.  Ketubbot,  VIII,  ir,  32  c,  where  it  is  said 
of  Simon  b.  Shetah,  HOirT  'h'^b  HNOIt:  ppflH  NIHI.  The  correctness 
of  this  statement  is  questioned  b\-  the  Talmud  on  the  ground  that  it  conflicts 
with  another  reliable  report,  which  ascribes  this  decree  to  the  two  Joses. 
The  explanation  is  then  offered  that  both  reports  are  correct.  The  decree  was 
first  issued  by  the  two  Joses,  but  was  subsequentlj^  forgotten  or  neglected, 
and  then  revived  and  reintroduced  by  Simon  b.  Shetah.  Thjs  talmudic 
explanation  may  be  correct.  The  hesitancy'  on  the  part  of  the  other 
teachers,  Jose's  colleagues,  to  accept  the  interpretation  on  which  he  based 
his  decree  vaay  have  necessitated  another  formal  decree  or  a  confirmatory 
act  in  the  days  of  Simon  b.  Shetah.  Graetz,  however,  evidently  does  not 
think  so.  He  discards  this  explanation  of  the  Talmud  as  a  poor  attempt 
to  harmonize  these  two  conflicting  reports.  However,  granted  that  this 
explanation  is  merely-  a  harmonization,  we  can  reject  the  explanation  but 
not  the  objection  raised  by  the  Talmud.  There  is  no  reason  whatever  for 
ignoring  all  the  other  reports  which  ascribe  the  decree  to  the  two  Joses 
and  accepting  this  one  which  ascribes  it  to  Simon  b.  Shetah.  This  is  all 
the  more  incorrect  as  it  is  apparent  that  this  one  report  is  based  on 
a  mistake.  Simon  b.  Shetah  decreed  against  metal-ware,  ni^DD  V^ 
(Shabbat  14  b,  comp.  Graetz,  I.e..  pp.  706,  708.  In  a  report  about  this 
decree  of  Simon  some  one  probably  made  the  mistake  of  substituting 
JT'SI^T  ""b^  for  n"lDn?2  "h^.  R.  Jonah's  saying  cited  there  in  the  Talmud 
(p.  Ketubbot,  /.  c.)  is  accordingly  another  answer  to  the  question  raised 
there  about  the  two  confiicting  reports.  It  is  introduced  for  tiie  purpose 
of  correcting  the  mistake  in  the  one  report,  and  telling  us  that  Simon 
decreed  only  against  metal-ware  Jll^nO  v3  and  not  against  ri''3m  v2. 
The  decree  against  the  latter,  then,  really  came  from  the  two  Joses  as 
reported  repeatedly  in  p.  Shabbat  I,  3  d,  p.  Pesahim  27  d,  and  b.  Shabbat  15  a. 

Graetz  is  wrong  in  assuming  that  the  Babylonian  Talmud  does  not 
contain  correct  information  about  this  subject,  and  that  the  utterance  of  an 
Amora  Zeera  is  mistaken  in  the  Babylonian  Talmud  for  a  Baraita.  The 
contrary  is  true.  This  report  is  an  older  Baraita.  In  the  Palestinian 
Talmud,  however,  this  Baraita  is  mentioned  by  the  Amora  Zeera,  as  there 
are  manj-such  instances  of  Baraitot  being  quoted  by  Amoraim  and  appearing 
as  if  the\'  were  the  sayings  of  the  Amoraim  ^see  Frankel,  Mebo  Ita-Jcriishalmi, 
pp.  26-7  :. 


8o  MIDRASH    AND    :MISHNAH 

decision  was  (as  is  correctly  given  by  Johanan,  in  the  name 
of  Simon  ben  Lakish)  that  glass  is  made  of  sand  and  is 
therefore  the  same  as  any  other  earthen  vessel,  Din  ^73 
{ibid.,  15  b).  The  Talmud,  discussing  this  explanation  of 
Simon  ben  Lakish,  raises  the  following  question  :  '  If  glass- 
ware has  been  declared  like  Din  ''^d  because  being  made  of 
sand  it  belongs  to  the  class  of  earthen  vessels,  why  then  is 
it  not  considered  by  the  Halakah  as  D"in  ^^3  in  all  respects  ? 
In  the  discussion  that  follows,  the  Talmud  {ibid.)  finds 
difficulties  in  answering  this  question.  We  are  not  concerned 
with  the  answer  given  in  the  Talmud,  because  it  is  merely 
an  unsuccessful  attempt  to  harmonize  the  decision  of  Jose 
with  later  practice.  The  significant  thing  for  us  is  that 
this  question  was  raised.  It  indicates  that  the  Amoraim 
experienced  difficulty  in  understanding  the  decision,  although 

From  the  discussion  in  the  Babylonian  Talmud  about  this  report  it  is 
evident  that  they  were  well  informed  about  this  case.  Objections  arc  raised 
against  part  of  this  tradition,  viz.  the  report  about  the  decree  of  by  nN?D"lD 
D''OJ/'n  I'lS.  They  show  that  there  is  another  report  which  ascribes  it  to 
the  nrj'  □''JIJ^w'T  \11~\.  The  two  reports  are,  however,  harmonized.  But 
they   could    not    find    any   contradictory   report   about    the    decree    against 

The  reading  ri''2"l2T  v2  ^1"1  i"  the  report  of  the  activity  of  the  "31 
njt^  D''J1J^tin  is  missing  in  the  older  codices.  See  Zerahiah  Halevi  in 
Hamaor  to  Shabbat,  ad  loc.  From  the  fact  that  no  answer  or  solution  is 
given  in  regard  to  n''I3'l2T  v3  it  is  also  evident  that  the  report  about  the  act 
of  the  r\y:,'   n'ilir^'l    p^l  only  mentioned   the  decree  of  pN  ^V  HXrOID 

Graetz's  argument,  that  this  institution  presupposes  the  common  use  of 
glassware  among  the  people,  a  practice  which  could  not  have  been  the  case 
in  the  time  of  the  two  Joses,  is  rather  weak.  Although  the  great  majority 
of  the  people  may  not  have  lived  in  luxury  in  the  time  of  the  two  Joses, 
yet  there  were  at  least  some  rich  people  who  could  and  did  indulge  in  the 
luxury  of  using  glassware.  It  was  just  at  the  first  introduction  of  these 
vessels  to  Judea  by  some  rich  people  that  the  question  about  their  status  in 
regard  to  the  laws  of  cleanness  came  up.  The  teachers  then  declared  that 
tliey  were  subject  to  the  laws  of  uncleanness. 


MIDRASH    AND    MISHNAH  8r 

they  were  aware  of  the  basis  upon  which  Jose  founded  his 
decision.     To  this  question  raised  in  the  Talmud  we  may 
add  the  following  question  which  will  disclose  another  weak 
point  in  the  explanation  of  the  decision.     If  this  decision 
of  the  two  Joses  was  reached  by  interpreting  the  biblical 
term  Din  ^73  so  as  to  include  glassware  (because  it  is  made 
of  sand)  then  their  decision  was  in  reality  a  biblical  law, 
as  no  distinction  can  be  made  between  vessels  of  clay  and 
vessels  of  sand,  both  being  earthen  vessels.    Why  then  was 
this  decision  ascribed  to  the  two  Joses  and  characterized 
as  an  arbitrary  decree,  a  mere  mn:  ?     The  following  ex- 
planation will  give  the  answer  to  both  questions  mentioned 
above  and  will  remove  the  difficulties  experienced  by  the 
talmudic  teachers  in  understanding  this  decision.     Jose  and 
his  colleague  interpreted  the  biblical  term  Din  '<b2  to  mean 
a  vessel  made  of  any  kind  of  earth,  and,  consequently,  he 
included  in  it  n''3l2r  ^73  which  he  indeed  considered  in  all 
respects  like  Din  '•73.    The  younger  teachers,  however,  would 
not  accept  the  broad  definition  given  by  Jose  to  the  term 
Din  ''73   so  as  to   include  n''313I  '•^3  also.     For  this  reason 
they  refused  to  follow  Jose  in  considering  glassware  like 
Din  "'^3  in  all  respects.     Out  of  respect  for  the  two  Joses, 
some  of  their  contemporaries  or  successors  accepted  the 
decision,  but  designated  it  merely  as  a  rabbinical  decree, 
a    nTn.     They  would    therefore  apply  to   n"'3l3r    *^3    only 
certain  of  the  laws  of  uncleanness  that  pertained  to  earthen 
vessels.  Din  '•73.     These  other  teachers  would  therefore  not 
teach  this  decision  in  the  Mid  rash-form  together  with  the 
passage  Din  ''73  731,  as  Jose  no  doubt  did.     They  would 
teach   it  as  an  independent  Halakah,  as  a  rabbinical  law 
that  has  no  scriptural  basis  but  rested  merely  upon  the 
authority  of  the  two  teachers. 

L.  G 


82  MIDRASH    AND    MISHNAH 

The  motive  for  accepting  a  teacher's  decision  without 
accepting  his  proof,  may  be  found  either  in  the  respect 
entertained  by  the  younger  teachers  for  the  author  of  the 
decision,  or  in  their  belief,  that  the  author  of  the  decision 
was  in  possession  of  a  tradition  unknown  to  them.^^  In 
either  case  they  had  no  hesitancy  in  rejecting  the  proofs 
which  they  considered  unconvincing  or  too  novel.  Whatever 
their  motives,  it  is  certain  that  the  younger  contemporaries 
of  Jose  or  his  successors  accepted  his  decisions  and  taught 
them  in  his  name  although  without  his  proofs  for  them. 
The  latter  they  rejected,  because  they  did  not  approve  of 
his  new  methods  of  interpretation. 

This  attitude,  despite  its  inconsistency,  was  quite 
common  among  the  teachers  of  the  Halakah.'^  The  most 
striking  instance  of  this  practice  is  to  be  found  in  the 
'  story  of  Hillel  and  the  Bene  Batyra  (Yerush.  Pesahim  33  a). 
In  this  account  we  are  told  that  all  the  arguments  and 
scriptural  proofs  advanced  by  Hillel  in  favour  of  the  decision 
that  the  Passover  sacrifice  should  set  aside  the  Sabbath 
were  rejected  by  the  Bene  Batyra,  although  Hillel  had 
learned  all  or  most  of  these  proofs  and  interpretations 
from  his  teachers  Shemaiah  and  Abtalion.  But  when,  at 
last,  he  told  them  that  he  had  received  the  decision  itself 
from  Shemaiah  and  Abtalion,  they  forthwith  accepted  the 

«5  Compare  the  idea  expressed  in  the  saying:  Tl'VI  T\'^T\  nriTl  "JD 
D^JISi'Nin  T\T\  ijy  1D''JDni  D^-'J^'n  nroyi  mn^ri,  often  used  to  explain 
the  acts  of  the  teachers  who  instituted  new  laws  (p.  Shebiit  33  b  and 
p.  Ketubbot  32  c).  It  is  possible  that  such  an  idea  was  conceived  in  very 
early  times,  and  possibly  it  was  such  a  view  that  guided  the  successors  of 
Jose  in  their  acceptance  of  his  decisions. 

">  Compare  the  phrase  r\2Wr\  B'^  pl^  QXI  ^3p:  H^^n  DX  (M.  Yebamot 
VIII,  3  and  M.  Keritot  III,  9)  which  clearly  shows  that  they  were  ready 
to  accept  a  Halakah  although  rejecting  the  proof  offered  for  that  Halakah. 


MIDRASH    AND    MISHNAH  83 

■same.  iy  1:^^  ib'p  i6  Dvn  ^3  \rh  L'-im  2'^'V  n\nc^  ^d  ^y  f^x 
fV^D3Nl  n''y»L"D  ^nyr^L"  "]d  ^iry  nt  -irDS-j*.  We  need  not  discuss 
the  historicity  of  this  report,  a  point  which  is,  to  say  the 
least,  very  doubtful.  Whatever  we  may  think  of  the 
account,  we  may  be  sure  that  its  author  pictured  accurately 
the  attitude  which  teachers  usually  assumed  towards  the 
decisions  given  in  the  name  of  older  teachers.  It  is  evident 
from  this  account  that  its  author  certainly  believed  that 
teachers  or  authorities  like  the  Bene  Batyra  (whoever  they 
may  have  been)  were  in  the  habit  of  accepting  decisions 
given  in  the  name  of  a  departed  teacher,  even  in  cases 
where  they  would  refuse  to  accept  the  proofs  for  the 
decisions  also  given  in  the  name  of  that  teacher."^  Whether 
this  actually  took  place  in  the  case  of  Hillel  and  the  Bene 
Batyra  is  of  minor  importance.  Accordingly,  we  learn 
from  this  report  that  in  the  time  of  Hillel  there  were 
certain  teachers  who  raised  objections  to  the  new  methods 
which  Hillel  had  acquired  from  the  great  exegetes  D^Jt^'IT 
Qvnj,  Shemaiah  and  Abtalion.  However,  the  same 
teachers  would  not  hesitate  to  accept  a  practical  decision 
which  Hillel  reported  in  the  name  of  these  two  authorities. 

"^  Compare  Bassfreund  {op.  cil.,  p.  19,  note  3).  All  the  difficulties  which 
he  finds  in  this  story  are  removed  by  our  explanation.  Most  likely  Hillel 
had  learned  from  Shemaiah  and  Abtalion  not  only  the  decision  but  also  all 
the  interpretations  which  he  offered  as  arguments  in  favour  of  the  same. 
He  also  gave  these  interpretations  in  the  name  of  his  teachers.  The  Bene 
Batyra,  however,  refused  to  accept  these  interpretations,  because  they 
objected  to  the  new  methods  developed  by  Shemaiah  and  Abtalion.  It 
was  their  opposition  to  these  new  methods  of  interpretation  which  kept 
them  from  attending  the  schools  of  Shemaiah  and  Abtalion,  and  not 
their  negligence,  as  one  might  judge  from  Hillel's  reputed  remark  :  DvVy 
-nnn  •'bnJ  ^yj'  Dn^'CLT  N'^C  D^a  nnMC.  Their  respect  for  these  great 
teachers,  however,  led  them  to  accept  their  decision,  even  though  they 
would  not  accept  their  proofs. 

G  a 


84  MIDRASH    AND    MISHNAH 

That  which  happened  in  the  time  of  Hillel  also  happened 
in  the  time  of  Jose  ben  Joezer.  When  he  used  new  methods 
of  interpretation  for  the  first  time,  his  colleagues  hesitated 
to  follow  him,  although  they  did  accept  some  of  the 
decisions  which  he  derived  from  the  Scripture  by  means 
of  these  new  methods. 

We  can  easily  understand  the  reason  for  such  an  attitude, 
inconsistent  as  it  may  appear.  To  accept  the  proof  for 
a  decision  implied  approval  of  the  method  by  which  that 
proof  was  obtained.  This  would  open  the  door  to  further 
application  of  these  new  methods,  so  that  there  was  no  way 
of  telling  what  decisions  might  be  thus  arrived  at.  Against 
this  danger  the  teachers  attempted  to  guard  themselves, 
but  they  never  went  so  far  as  to  decide,  in  any  practical 
case,  against  the  authority  of  an  older  teacher.  For  this 
reason  they  would  often  accept  the  decision  but  reject  the 
proofs. 

In  the  above,  we  have  digressed  for  the  purpose  of 
making  clear  that  difference  of  opinion  concerning  methods 
of  interpretation  prompted  the  teachers  to  sometimes  divorce 
a  Halakah  from  the  scriptural  proof.  We  have  also  seen 
that  the  three  oldest  Halakot  preserved  in  Mishnah-form, 
namely,  the  three  decisions  of  Jose,  owed  their  present  form 
to  this  very  reason.  They  were  expressed  in  Mishnah-form 
by  Jose's  disciples  who  felt  constrained  to  reject  the  proofs 
advanced  by  Jose  because  of  the  novelty  of  his  methods  of 
interpretation. 

Accordingly,  it  may  be  stated  with  certainty  that  the 
Mishnah-form  was  first  used  to  teach  those  customs  and 
practices  which  originated  during  the  time  when  there  was 
no  official  activity  of  the  teachers.  Having  no  scriptural 
basis,  they  could  not   be  taught  in    connexion   with   the 


MIDRASH    AND    MISHNAH  85 

Scripture,  i.e.  in  the  Midrash-form.  The  Mishnah-form 
was  further  used  to  teach  those  traditional  laws  and 
decisions  which  some  teachers  attempted  to  derive  from 
Scripture  by  means  of  new  methods  of  interpretation. 
While  some  of  their  contemporaries  or  disciples  accepted 
the  new  methods,  and  therefore  taught  these  decisions  in 
the  Midrash-form,  others,  and  by  far  the  majority,  rejecting 
the  new  methods,  accepted  only  the  decisions.  Finding  no 
convincing  proofs  for  such  laws  in  the  Bible,  they  taught 
them  independently  of  scriptural  proof,  i.e.  in  the  Mishnah- 
form.  These  two  motives  for  teaching  Halakot  in  the 
Mishnah-form  are  really  one  and  the  same.  Whether  no 
midrashic  proof  could  be  found  for  a  decision,  or  whether 
the  midrashic  proof  suggested  was  deemed  unconvincing, 
the  motive  for  the  Mishnah-form  was  the  same — the 
absence  of  a  sound  Midrash. 

To  this  first  motive  there  soon  were  added  other  motives 
for  the  use  of  the  Mishnah-form.  Certain  considerations 
in  the  course  of  time  urged  the  teachers  to  extend  its  use 
even  to  such  Halakot  as  had,  in  their  opinion,  good 
scriptural  proofs  and  could  well  be  taught  in  connexion 
with  the  Scripture  in  the  Midrash-form.  These  other 
motives  and  considerations  arose  from  the  disputes  between 
the  Sadducees  and  Pharisees.  They  became  stronger  and 
stronger  with  the  ever-widening  breach  between  the  two 
factions. 

As  the  dispute  between  the  parties  progressed,  the 
antagonism  between  them  naturally  became  sharper.  Each 
party  came  to  assume  a  distinctive  attitude  towards  the 
I^aw,  and  they  consistently  worked  out  their  respective  lines 
of  attack  and  defence.  The  Pharisees  came  to  recognize 
the  binding  character  of  the  traditional  law,  na  byac'  niin. 


86  MIDRASH    AND    MISHNAH 

and  demanded  that  it  be  considered  of  equal  authority 
with  the  written  Law.  The  Sadducees.  on  the  other  hand, 
became  more  outspoken  in  their  denial  that  the  traditional 
law  possessed  absolute  authority.  These  differences  had 
their  effect  upon  the  forms  used  in  teaching  the  Halakah. 

As  we  have  seen  above,  the  Midrash  was  used  for  the 
purpose  of  grafting  new  decisions  and  practices  upon  the 
words  of  the  written  law,  when  the  latter  onl}'  was  con- 
sidered the  sole  authority  binding  upon  the  people.  To 
give  sanction  to  any  decision  or  traditional  law,  it  was 
necessary  to  find  for  it  some  indication  in  the  authoritative 
Book  of  the  Law  and  thus  to  present  it  as  contained 
or  implied  in  the  written  Law.  As  soon  as  Tradition  was 
raised  to  the  rank  of  the  Law  and  thus  recognized  as  an 
independent  authority  parallel  to  the  written  Law,  there 
was  no  longer  that  urgent  need  of  connecting  each  and 
every  Halakah  with  the  words  of  the  written  Law  in  the 
form  of  the  Midrash.  A  halakic  decision  based  on  a 
tradition  was  now  considered  by  the  teachers,  and  repre- 
sented by  them,  to  be  just  as  authoritative  as  one  derived 
from  the  written  Torah  by  means  of  an  interpretation  or 
Midrash.  The  Halakah  as  traditional  law  could  now  stand 
without  the  support  of  a  scriptural  basis,  and  could  there- 
fore be  taught  independently  in  the  Mishnah-form.  Not 
only  was  there  no  more  need  for  teaching  all  the  Halakot 
together  with  the  written  Law  in  the  Midrash  form,  but 
there  were  also  sufficient  reasons  for  the  Pharisaic  teachers 
to  teach  Halakah  as  traditional  law  without  even  attempting 
to  connect  the  same  with  the  written  Law.  For.  in  so 
doing,  they  emphasized  their  belief  in  the  twin-law  niiin  TiB';^ 
that  is,  the  belief  that  there  were  two  equal  sources  of 
religious  teaching,  one  the  written  Torah  and  the  other 


MIDRASH    AND    MISHNAH  87 

the  unwritten  Oral  Law,  both  of  which  must  be  studied 
ahke,  and  that  one  is  as  important  as  the  other.  Of  course 
they  continued  to  develop  the  Midrash  method  for  the 
purpose  of  deriving  new  Halakot  from  the  one  source — 
the  written  Law.  The  Halakot  thus  derived  from  the 
Scriptures  were  taught  together  with  the  latter,  in  the 
Midrash-form.  In  this  way,  they  could  well  continue  to 
use  the  Midrash-form  even  after  the  Mishnah-form  was 
adopted.  They  were  apprehensive  only  of  using  the 
Midrash-form  exclusively,  because  such  an  exclusive  use 
might  reflect  upon  their  theory  of  an  authoritative  Oral 
Law.  The  very  endeavour  to  connect  all  Halakot  with 
the  written  Law  by  means  of  the  Midrash  would  have 
meant  to  acknowledge  that  there  was  only  one  Law, 
namely,  the  one  contained  in  the  Book.  They  would 
thus  have  conceded  to  the  Sadducees  the  disputed  point 
that  the  traditional  law,  ns  bui'^i'  nmn,  was  not  of  equal 
authority  with  the  written  Law,  2r\22Z'  n~nn.  By 
the  parallel  use  of  both  forms,  Midrash  and  Mishnah, 
they  showed  that  they  treated  both  sources  alike.  By 
teaching  in  Mishnah-form  even  such  Halakot  as  could 
be  derived  from  the  written  Law  and  taught  in  the 
Midrash-form,  they  showed  that  they  were  not  very 
anxious  to  find  scriptural  support  for  each  Halakah.  This 
was  a  strong  expression  of  their  belief  in  the  equal  authority 
of  the  two  Torot,  a  belief  that  made  it  of  little  consequence 
whether  a  Halakah  was  taught  in  the  Midrash-form,  as 
derived  from  the  written  Law,  or  in  the  Mishnah-form,  as 
a  traditional  law. 

Furthermore,  the  exclusive  use  of  the  Midrash-form 
threatened  to  endanger  the  authority  and  the  teachings  of 
the  Pharisees.     These  apprehensions  caused  the  Pharisaic 


88  MIDRASH    AND    MISHNAH 

teachers  to  make  more  extensive  use  of  the  Mishnah-form 
and  in  some  cases  even  to  prefer  the  same  to  the  Midrash- 
form.  For  to  give  all  the  halakic  teachings  of  the  Pharisees 
in  the  Midrash-form  as  based  on  the  Scripture  would  have 
exposed  these  teachings  to  the  attack  of  the  Sadducees. 
As  we  have  seen  above,  the  hesitancy  on  the  part  of  some 
teachers  to  recognize  the  validity  of  the  new  interpretations 
offered  in  support  of  certain  decisions  led  to  their  teaching 
such  decisions  in  Mishnah-form.  The  new  rules  and  methods 
gradually  found  recognition  among  the  Pharisaic  teachers, 
who  would  admit  the  validity  of  interpretations  derived  by 
means  of  these  new  methods.  Thus  they  were  able  to 
furnish  a  Midrash  for  almost  every  Halakah.  But  among 
the  Sadducees  the  objection  to  these  new  methods  was 
very  strong  and  they  absolutely  denied  their  validity.  If 
the  Pharisees  arrived  at  a  certain  decision  by  means  of 
a  new  interpretation,  the  Sadducees  could  always  dispute 
that  decision  by  refuting  the  scriptural  proof  offered  for  it. 
It  was  possible  for  them  to  argue  that  the  Pharisaic  inter- 
pretation was  unwarranted  and  that  the  scriptural  passage 
did  not  mean  what  the  Pharisees  tried  to  read  into  it.  The 
Pharisees  feared  that  such  arguments  against  their  teachings 
raised  by  the  Sadducees  might  have  a  detrimental  effect 
upon  the  young  students  and  draw  them  away  from  the 
Pharisaic  teachings.  The  Pharisees  were  well  aware  that 
some  of  their  interpretations  were  rather  forced,  and  that 
their  opponents' arguments  against  these  interpretations  were 
sound.  Wherever  possible,  the  Pharisees  were,  therefore, 
anxious  to  avoid  such  disputes,  or  to  prevent  their  pupils 
from  entering  into  them.  The  easiest  way  to  avoid  these 
disputes  concerning  the  validity  of  the  scriptural  proofs  for 
the  Pharisaic  teachings,  was  to  avoid  the  mention  of  any 


MIDRASH    AND    MISHNAH  89 

such  doubtful  scriptural  proofs  at  all,  that  is  to  say,  to  use 
Mishnah  rather  than  Midrash.'^  After  the  Pharisaic  teachers 

'*  It  should  be  noticed  that  it  was  only  with  the  younger  students  that 
the  teachers  pursued  this  pedagogical  method  of  suppressing  scriptural 
proofs,  when  these  were  not  quite  perfect,  and  of  teaching  the  Halakot  in 
Mishnah-form  without  any  proof  whatsoever.  They  considered  it  necessary 
to  take  this  precaution  to  prevent  the  young  students  from  being  shaken 
in  their  belief  in  tradition  and  from  doubting  the  authority  of  the  traditional 
law.  To  the  advanced  students,  however,  they  would  unhesitatingly 
communicate  all  the  scriptural  proofs  or  even  artificial  supports  which  they 
had  for  their  teachings.  Hence  among  the  advanced  students  the  use  of  the 
Midrash-form  was  prevalent  (see  above,  note  3). 

A  few  talmudic  sayings  may  be  cited  here  to  prove  that  it  was  the 
tendency  among  the  teachers  to  withhold  from  the  students  while  young 
the  arguments  and  reasons  for  the  laws  and  to  keep  them  from  disputes  with 
their  opponents.     Simon  b.  Halafta  says  :  "J'Ua    D''Jt2p   D'^T'O^nrTJ'   nWl 

min  'n  onb  nb:  nniny^  ik'j;:"!  li^njn  min  nan  nn-js^  'As  long 

as  the  pupils  are  young  hide  from  them  [some]  words  of  the  Torah.  When 
they  are  more  mature  and  advanced  reveal  to  them  the  secrets  of  the  Torah ' 
(p.  Abodah  zarah  II,  41  d).  Simon  b.  Johai  says  :  "JOi'V  Vp^^b  Vi)^'^  i?  PX 
in'J'D  mX  ''J3  ''Jd!?  N^N  min  nma  '  You  are  not  permitted  to  enter  into 
a  deep  discussion  of  the  words  of  the  Torah  except  in  the  presence  of  pious 
and  good  people'  (ibid.).  By  'pious  and  good  people'  p"lL^3  DTS  ^33 
are  evidently  meant  people  who  follow  the  Rabbis  and  accept  the  teachings 
of  the  traditional  law.  According  to  the  Gemara  {ibid.)  the  two  sayings 
of  Simon  b.  Halafta  and  Simon  b.  Johai  go  together.  There  is  a  subtle 
connexion  between  them.  This  connexion  consists  in  the  fact  that  both 
aim  at  the  same  purpose,  viz.  not  to  give  the  opponents  of  the  Rabbis  and 
the  traditional  law  any  opportunity  to  attack  the  traditional  law  by  refuting 
the  arguments  or  proofs  brought  for  the  same  by  the  Rabbis. 

We  see  from  these  two  sayings  that  even  as  late  as  the  middle  of  the 
second  century  c.  e.,  when  the  followers  of  the  Sadducean  doctrines  were 
no  more  so  strong,  neither  in  numbers  nor  in  influence,  the  Rabbis  were  still 
anxious  to  avoid  disputes  with  them,  and  would  therefore  not  tell  the  young 
pupils  all  their  arguments  and  reasons  for  the  laws,  lest  the  opponents 
might  refute  them  and  upset  the  beliefs  of  the  young  pupils.  Compare  the 
sayingof  Jose  b.  Halafta,  nn'b  DV1"1^*^  D'>P'^  "1-nn  ^N,  M.  Parah  HI,  3, 
and  see  below,  note  80. 

In  the  days  of  the  earlier  teachers  when  the  influence  of  the  Sadducees 
and  their  followers  was  stronger,  this  tendency  among  the  teachers  of  the 
traditional  law,  to  keep  the  young  students  from  entering  into  discussions 


go  MIDRASH    AND    MISHNAH 

agreed  upon  deriving  a  certain  Halakah  from  a  given  passage, 
they  preferred  to  teach  that  Halakah  in  an  independent  form 
without  citing  passage  or  interpretation.  Such  a  Halakah 
or  decision  could  then  be  received  in  good  faith  by  the 
students  who  followed  the  Pharisees.  The  pupils  would 
rely  on  the  authority  of  the  teachers  believing  that  they 
were  in  possession  of  valid  proofs  for  their  Halakot,  although 
they  did  not  mention  them.  On  the  other  hand,  the 
Sadducees  could  never  successfully  refute  the  Halakot  thus 

with  the  Sadducees,  must  of  course  have  been  stronger.      The  saying  of 
R.  Eliezer:    D^ODH    n^lD^H    ''Din    I''2    DU'iK'im    jV^nn    |D    DD^Jl    IViJa 
(Berakot  17  b),  probably  expresses  this  tendency  to  make  the  young  pupils 
study  more  the  traditional  law  at  the  feet  of  the  teachers,  and  keep  them 
away  from  studying  the  scriptural  proofs  and  the  arguments  for  the  tradi- 
tional laws.     A  very  striking  illustration  of  this  tendency  among  the  earlier 
teachers   is  found   in    the   report   of  a  conversation   between  Ishmael  and 
R.  Joshua  b.  Hananiah.     Ishmael  asks  R.  Joshua  to  tell  him  the  reason  for 
a  certain  rabbinical  law.     Joshua,  apparently  unwilling  to   state  the   real 
reason,  gives  him  an  evasive  answer.     This  does  not  satisfy  Ishmael,  and 
he   persists   in   demanding  an   explanation.      Joshua,   instead  of  replying, 
simply  ignores  the  question,  drops  the  subject,  and  begins  to  discuss  another 
subject  (M.  Abodah  zarah  II,  5).     The  Gemara  (35  a)   reports  further  that 
Joshua  actually  commanded  Ishmael  to  stop  asking  questions  about  this  Law. 
He  plainly  told  him,  n^tt'n^   br\2n   ^Nl   1T2  IT  TTlS'tT  piCTH  'Close  your 
lips  and  be  not  so  anxious  to  argue'.    The  Gemara  then  gives  the  following 
explanation  for  this  rather  harsh  rejoinder.    It  was  a  rule  with  the  teachers 
in  Palestine  not  to  give  a  reason  for  a  new  law  until  at  least  one  year  after 
it  was  decreed.    They  feared  that  some  people,  not  approving  of  the  reason, 
would  disregard  and  treat  lightly  the  law  itself:   sH   B'J''N   NO''X  ND^H 
nn    "'i'T!'?!^    TlNI    b"D.     These  words    are   significant.     There   was    only 
one  class  of  people  who  might  disapprove  the  reasons  of  the  Rabbis,  and 
these  were  the  followers  of  Sadducean  doctrines.     Ishmael  must  have  been 
a  very  young  student  at  that  time  (see  Midrash  Shir  r.  I,  2),  and  R.  Joshua 
did  not  want  to  give  him  the  reason  for  this  new  rabbinical  law,  for  fear 
that  some  of  the  opponents  of  the  traditional  law  might  be  able  to  prove 
to  young  Ishmael  that  the  reason  for  this  law  was  insufficient,     (Compare 
Joshua's  remark  against  those  who  question  the  authority  of  the  traditional 
law,  to  be  cited  below,  note  78.) 


MIDRASH    AND    MISHNAH  9I 

taught.  Not  knowing  on  what  basis  they  rested  or  what 
proofs  the  Pharisees  ofifered  for  them,  they  were  unable  to 
areue  concernin"-  them.  Their  attacks  on  these  Pharisaic 
teachings  would  then  consist  of  mere  negations  without  the 
force  of  strong  argument.  As  mere  negations  are  not  con- 
vincing, such  attacks  on  the  part  of  the  Sadducees  could 
not  greatly  harm  the  Pharisaic  followers. 

The  teachers,  all  of  the  Pharisaic  party,  were  influenced 
by  still  another  consideration.  The  tendency  to  teach  only 
in  Midrash-form,  showing  that  all  the  religious  teachings 
were  lodged  in  the  written  Torah,,  threatened  to  take  away 
from  the  Pharisaic  teachers  their  prestige  and  to  lend  support 
to  the  claim  of  the  Sadducees  that  there  was  no  need  of  the 
i'STi:"'  \c3n,  i.e.  the  teachers  of  the  Pharisaic  party.  In  the 
report  about  the  conflict  between  John  Hyrcanus  and 
the  Pharisees  (Kiddushin  66  a)  we  are  told  that  the  former, 
at  first,  hesitated  to  persecute  the  7S*"i:J''  ""^an  of  the  Pharisaic 
party  because  he  considered  them  indispensable  as  teachers 
of  the  Law.  He  is  said  to  have  asked  n'^bv  Nnn  no  niin 
'  What  will  become  of  the  Torah  '  without  the  Pharisaic 
teachers  ?  But  his  Sadducean  adviser,  who  urged  the  per- 
secution of  the  Pharisees,  told  him  \'^p2  nmn^i  n::)'^^  '<in 
l)rDb'\  NT  nv^bb  r\'^)'\n  b  n^.^,  that  the  Torah  would  remain, 
even  if  the  Pharisees  would  be  killed.'^  Also  that  any  one 
could  study  it  because  the  Pharisees  were  not  the  only 

"^  It  makes  very  little  difference  whether  this  story  is  historicall3'  true 
in  all  its  details  or  not.  It  reflects  the  idea  of  the  Sadducees  that  the 
Pharisaic  teachers  could  be  dispensed  with,  and  also  the  insistence  of 
the  Pharisees  that  they  were  absolutely  necessary  for  the  preservation 
of  the  Torah.  The  story  mirrors  for  us  the  fears  that  the  Pharisees  enter- 
tained. As  we  are  concerned  merely  with  the  motives  that  prompted 
the  Pharisaic  teachers  to  make  the  change  in  the  form  of  their  teaching, 
this  story  may  be  taken  as  an  unconscious  but  accurate  description  of  the 
consideration  which  could  have  moved  them. 


92  MIDRASH    AND    MISHNAH 

teachers  of  the  Law.  If,  then,  all  the  teachings  and  the 
Halakot  were  represented  as  derived  from  the  Torah  by 
means  of  interpretation,  as  is  done  in  the  Midrash-form, 
this  claim  of  the  Sadducees  would  appear  justified.  There 
would,  indeed,  be  no  need  of  the  ^Nic^^  ''Dan,  of  the  Pharisaic 
party.  Any  one  else  could  likewise  interpret  the  law  correctly 
and  derive  from  it  all  the  Halakot  that  are  implied  therein, 
for  a  thorough  understanding  of  the  text  of  the  written 
Law  was  certainly  not  limited  to  the  Pharisees.  Thus  the 
aim  of  the  Pharisees  to  assert  their  authority  and  to  show 
that  they  were  absolutely  necessary  for  the  perpetuation  of 
the  religious  teachings  made  it  desirable  for  them  to  use 
the  Mishnah-form.  Even  if  there  had  been  no  objections 
to  their  new  methods  and  even  if  they  had  been  able  to 
find  scriptural  proofs  for  all  their  decisions,  they  neverthe- 
less thought  it  advisable  not  to  insist  upon  connecting  their 
halakic  teachings  with  the  written  Law  in  every  case.  By 
separating  the  two,  they  made  themselves  indispensable. 
If  there  were  Halakot  not  connected  with  the  written  Law, 
one  must  turn  for  these  teachings  to  the  7N~i:r*  ""DDn,  who 
alone  were  in  possession  of  them,  and  who  could  not 
therefore  be  supplanted  by  others. 

That  which  was  at  first  but  hesitatingly  proposed,  viz. 
that  there  was  an  oral  law  alongside  of  the  written  Law, 
was  now  boldly  proclaimed.  The  Pharisaic  teachers  were 
represented  as  the  teachers  of  tradition  who  received  the 
oral  law  through  a  chain  of  teachers  in  direct  succession 
from  Moses.  Consequently  they  were  the  only  reliable 
authorities  for  the  religious  teachings.  They  insisted  that 
their  decisions  must  be  accepted  as  authoritative,  with  the 
understanding  that  they  either  derived  them  from  some 
passage  in  the  Scripture  by  sound  interpretation  or  based 


MIDRASH    AND    MISHNAH  93 

them  upon  some  reliable  tradition.  The  existence  of  valid 
proofs  was  always  presupposed.  Where  no  proofs  were 
given,  it  was  implied  that  they  were  unnecessary,  as  the 
authority  of  the  teachers  was  beyond  doubt.  This  tendency 
of  the  teachers  to  assert  their  authority  and  to  maintain 
the  validity  of  the  traditional  law  did  not  have  its  motive 
in  any  petty  desire  for  party  aggrandizement,  but  rather  in 
a  genuine  zeal  for  the  cause,  as  they  understood  it.  They 
asserted  their  authority  and  the  authority  of  the  traditional 
law  for  the  purpose  of  freeing  the  Torah  from  the  fetters  of 
literal  interpretation  forced  upon  it  by  the  Sadducees,  and 
developing  the  Law  according  to  its  spirit. 

All  these  considerations  caused  the  teachers  to  make 
more  and  more  use  of  the  Mishnah-form,  but  were  not 
sufficient  to  make  them  abandon  the  Midrash-form.  The 
Midrash-form  still  had  many  advantages.  It  was  the  older 
form  to  which  they  had  long  been  accustomed.  It  also 
afforded  a  great  help  to  the  memory,  as  the  written  word 
can  be  relied  upon  to  remind  one  of  all  the  Halakot  based 
upon  or  connected  with  it.  Consequently  they  used  both 
forms.  Those  Halakot  which  were  based  upon  a  sound 
and  indisputable  interpretation  of  a  scriptural  passage  they 
taught  in  the  Midrash-form,  i.  e.  in  connexion  with  the 
scriptural  proofs,  and  they  arranged  them  in  the  order  of 
the  scriptural  passages.  But  those  Halakot  for  which  the 
scriptural  proofs  were  in  dispute,  they  taught  in  the  Mishnah- 
form  and  grouped  them  according  to  some  principle  of 
arrangement,  such  as  number-mishnahs  or  other  formulas, 
for  the  purpose  of  assisting  the  memory.  In  the  course  of 
time,  the  number  of  the  Halakot  taught  in  the  Mishnah- 
form  grew  in  proportion  to  the  increase  and  the  development 
of  the  halakic  teachings.    A  great  many  of  the  new  Halakot, 


94  MIDRASH    AND    MISHNAH 

both  new  decisions  and  new  applications  of  older  laws,  were 
taught  in  the  Mishnah-form  by  some  teachers,  because  they 
could  not  find  satisfactory  scriptural  support  for  them.  It 
will  be  recollected  that  the  decisions  of  Jose  ben  Joezer 
were  given  in  the  Mishnah-form  for  the  same  reason. 

The  process  of  development  from  the  Midrash  of  the 
Older  Halakah  to  the  Midrash  of  the  Younger  Halakah 
was  marked  by  constant  struggles,  in  which  the  older 
methods  tried  to  maintain  themselves  as  long  as  possible. 
In  each  generation  (at  least  until  the  time  of  the  pupils  of 
R.  Akiba)  the  teachers  were  divided  as  to  the  acceptance 
of  these  new  methods.  Some  teachers  clung  to  the  older 
ways  and  would  not  follow  the  daring  applications  of  some 
new  rules  of  the  younger  teachers.  With  the  growth  and 
development  of  the  new  methods,  which  only  slowly  and 
gradually  won  recognition  with  all  the  teachers,  the  number 
of  Halakot  connected  with  the  Scriptures  by  means  of  these 
new  exegetical  rules,  also  grew.  Such  Halakot  were  then 
taught  by  different  teachers  in  different  forms.  Those 
teachers  who  approved  of  all  the  new  methods  consequently 
considered  the  interpretations  reached  by  these  methods  as 
sound,  and  the  Halakot  proved  thereby  as  well  founded  in 
the  Written  Law.  Accordingly,  they  would  not  hesitate 
to  teach  these  Halakot  together  with  their  proofs,  that  is, 
in  the  Midrash-form.  But  those  teachers  who  hesitated  to 
accept  the  novel  methods  and  the  new  interpretations  based 
thereon,  but  who  still  accepted  the  Halakot,  did  so  because 
they  considered  them  as  traditional,  or  because  the  same 
represented  the  opinion  of  the  majority.  Having  no  sound 
proofs,  in  their  opinion,  for  these  Halakot,  they  were  com- 
pelled to  teach  them  in  the  Mishnah-form,  without  any 
scriptural  proof. 


MIDRASH    AND    MISHNAH  95 

We  find  many  such  cases  in  the  tannaitic  literature.  Of 
these  we  shall  mention  only  a  few  ;  in  Sifra,  Zazu  XI  (ed. 
Weiss  34  d-35  a),  R.  Akiba  tries  to  prove  by  one  of  his 
peculiar  methods  of  interpretation  that  a  '  Todah  '-offering 
requires  half  a  '  log '  of  oil.  But  R.  Eleazar  ben  Azariah 
said  to  him  :  '  Even  if  you  should  keep  on  arguing  the 
whole  day  with  your  rules  about  including  and  excluding 
qualities  of  scriptural  expressions,  I  will  not  listen  to  you. 
The  decision  that  a  "Todah "-offering  requires  half  a  "log"  of 
oil  is  to  be  accepted  as  a  traditional  law,'  '*  "iDix  nnx  i^idn* 
Jib  "ivn  N^N  -jp  yDiD'  '•jw  DyjD^  p-ca  nmb  p*irn  i^d  ovn  b^ 
TDCi  nc'cb  r]:hr\  nmnb  jnc  The  emphatic  expression  ''rs* 
^  yrDiC'  '  I  will  not  listen  to  you ',  in  the  statement  of 
Eleazar  b.  Azariah  shows  that  he  strongly  objected  to 
Akiba's  method  of  interpretation,  and  that  he  considered 
5uch  proof,  not  merely  unnecessary,  but  also  unsound.  If 
Eleazar  was  actually  in  possession  of  a  tradition  for  this 
law,  it  would  have  been  sufficient  to  say  T"i^*  1^''*<  '  There 

"^^  It  is  very  doubtful  whether  R.  Eleazar  b.  Azariah  himself  used  the 
term  ''J"'DJD  TV2^u?  T\y?7\  to  apply  to  this  law  (notwithstanding  Bacher, 
'  Die  Satzungvom  Sinai',  in  Studies  in  Jeivish  Literature  published  in  honour 
-of  Dr.  K.  Koliler,  Berlin,  1913,  p.  58).  It  is  more  likely  that  the  words 
■^J''D?D  ViZ'u?  are  a  late  addition  and  not  the  words  of  R.  Eleazar.  R.  Eleazar 
said  merely  that  this  rule  was  a  traditional  or  rabbinical  law,  n^PH.  A  later 
teacher,  who  understood  the  term  T\j7T\  to  mean  '  Sinaitic  Law ',  added 
the  words  ^3"'DD  Hti'D?.  There  are  many  such  instances  where  a  later 
teacher  enlarges  the  term  n^^T! ,  used  by  an  older  teacher,  to  Hti'D?  H^PH 
''J''DD,  simply  because  he,  the  later  teacher,  understood  the  term  riDPn  in 
this  sense.  But  this  interpretation,  given  by  a  later  teacher,  to  the  term 
nspn  which  was  used  by  an  older  teacher,  is  not  necessarily  correct. 
Thus,  for  instance,  the  term  T\j7T\  used  in  the  statement  of  the  Mishnah 
r\:hr\  nSiyni  (M.  Orlah  in,  9)  is  interpreted  by  R.  Johanan  to  mean 
''yU'O  r\\y^b  r]:^:^  (p.  Orlah  63  b,  b.  Kiddushln  38  b-39a\  while  Samuel 
explains  it  merely  to  mean  simply  a  law  or  custom  of  the  land  iUniO  SriDS^n 
{ibid.). 


96  MIDRASH    AND    MISHNAH 

is  no  need  of  scriptural  proof.  It  is  evident  that  this 
Halakah  could  not  be  based  on  an  indisputable  traditional 
law.'^^  R.  Akiba,  therefore,  desired  to  give  it  support  by 
proving  it  from  the  Scriptures.  He,  no  doubt,  taught  it  in 
the  Midrash-form  together  with  the  passage  from  which  he 
endeavoured  to  prove  it.  But  R.  Eleazar  b.  Azariah,  who 
did  not  approve  the  interpretation  of  R.  Akiba,  although 
he  accepted  the  Halakah,  naturally  taught  it  as  a  traditional 
law,  and,  of  course,  in  Mishnah-form. 

Another  example  is  to  be  found  in  the  reasoning  used 
to  justify  the  ceremony  performed  with  the  willow,  nany. 
This,  no  doubt,  was  an  old  traditional  custom.  Abba  Saul, 
however,  declared  it  to  be  a  biblical  law,  deriving  it  from 
the  plural  form  ^n3  "•my  used  in  the  passage  of  Lev.  23.  40. 
This  passage,  according  to  Abba  Saul,  speaks  of  two 
willows.  One  is  to  be  taken  together  with  the  Lulab, 
and  the  other  separately  for  the  special  ceremony  with 
the  nany.  Abba  Saul,  no  doubt,  taught  this  Halakah 
in  the  Midrash-form  as  an  interpretation  of  the  passage  in 
Lev.  23.  40.  The  other  teachers,  however,  did  not  accept 
this  interpretation.  They  considered  this  ceremony  a  mere 
traditional  law,  ^J^DO  n-^'^b  r]:hn  (Jerush.  Shebiit  33  b),  and, 
of  course,  taught  it  in  the  Mishnah-form. 

■^5  It  is  absolutely  impossible  to  assume  that  R.  Akiba  refused  to  believe 
the  statement  of  R.  Eleazar  b.  Azariah  that  he  had  a  tradition  in  support 
of  this  law.  The  contrary  must,  therefore,  be  true.  R.  Eleazar  rejected 
the  Midrashic  proof  given  by  R.  Akiba  but  accepted  the  law  as  a  mere 
riD^n.  i.  e.  as  a  rabbinical  or  traditional  law.  It  may  be,  however,  that  this 
law  was  really  an  older  traditional  law,  though  not  "'J''DO  n'J'D?  n3?n,  and 
that  R.  Akiba  tried  to  give  it  a  scriptural  support  while  R.  Eleazar  preferred 
to  teach  it  as  a  detached  Halakah,  i.e.  in  Midrash-form.  Compare  the 
statement  in  Niddah  73  a  in  regard  to  another  law  which  R.  Akiba  derived 
from  a  scriptural  passage,  while  R.  Eleazar  b.  Azariah  preferred  to  teach 
itas  a  mere  Halakah,  KTlS^^H   nniy   i^   Tty^X  ^21^  \X1p  Hl^pV  '^l^. 


MIDRASH    AND    MISHNAH  97 

The  same  was  also  the  case  with  the  ceremony  of  the 
water-libation,  DV^n  '])d:,  which  R.  Akiba,  by  means  of 
a  forced  interpretation,  tried  to  represent  as  a  biblical  law. 
The  other  teachers  did  not  accept  his  interpretation.  They 
considered  it  merel>'  a  traditional  law,  TDn  nc'D^  r\::br\  {ibid.), 
and,  of  course,  taught  it  in  the  Mishnah-form.  In  this 
manner,  the  same  decisions  were  sometimes  taught  by  some 
teachers  in  the  jNIidrash-form,  while  other  teachers  taught 
them  in  the  Mishnah  form.''^  Thus  the  two  forms  continued 
in  use  according  to  the  preference  of  the  teachers.  The 
parallel  usage  of  these  two  forms  continued  long  after 
Sadduceeism  had  ceased  to  be  an  influential  factor  in  the 
life  of  the  people,  and  the  Pharisaic  teachers  had  become 
the  only  recognized  teachers  of  the  Law.  The  Mishnah- 
form  was  retained  by  the  teachers  even  after  the  new 
methods  of  interpretation  had  become  generally  accepted. 
In  spite  of  the  fact  that  these  methods  were  developed  to 

''^  The  very  frequency  with  which  the  Amoraim  declare  scriptural 
interpretations  of  the  Tannaim  to  be  merely  artificial  supports,  Nn^ODN 
X?-Py3,  for  rabbinical  or  traditional  laws  (see  Bacher,  Die  exegetische 
Tcnuiiiologte  der  jitdischen  TraditionsUterattir,  II,  pp.  13-141,  shows  that 
it  must  have  been  frequent  among  the  Tannaim  to  consider  some  inter- 
pretations as  mere  artificial  supports  and  not  real  proofs.  Otherwise,  the 
Amoraim  would  not  have  doubted  the  validity  of  a  tannaitic  Midrash.  It 
was  only  because  they  knew  that  the  Tannaim  themselves  had  frequently 
rejected  a  Midrash  as  unacceptable,  that  the  Amoraim  dared  declare  that 
some  tannaitic  interpretations  were  merely  artificial  supports. 

Perhaps  we  have  in  the  expressions  NVoi^y^  NTlSrDDN  N"ip"l  pnilO 
and  Nol^yn  Xn3?2DS'  Snpl  rh  ''"l"'?^:  S*n2^''n  an  attempt  at  harmonization 
on  the  part  of  the  Amoraim  for  the  purpose  of  explaining  away  the  differ- 
ences of  opinion  between  the  older  teachers.  They  mean  to  tell  us  that 
the  older  teachers  always  agreed  as  to  which  laws  were  traditional  and 
which  were  derived  from  the  Scriptures  by  means  of  interpretation. 
However,  in  the  case  of  certain  traditional  laws,  some  of  the  teachers  sought 
to  find  an  additional  artificial  support  for  the  same  for  the  mere  purpose 
of  connecting  them  with  the  Scriptures — not  because  they  doubted  their 
traditional  character. 

L.  H 


98  MIDRASH    AND    MISHNAH 

such  an  extent  that  one  could  interpret  any  passage  to  mean 
almost  anything,  and  thus  provide  scriptural  proofs  for  all 
possible  decisions,  the  teachers,  having  habituated  them- 
selves to  the  Mishnah-form  adhered  to  it.  An  additional 
reason  for  its  retention  may  be  found  in  the  fact  that  the 
Mishnah-form  itself  had  in  the  meantime  improved.  It 
lent  itself  to  new  principles  of  arrangement  and  grouping 
which  gave  it  decided  advantage  for  systematic  presenta- 
tion of  the  Halakah,  and  thus  made  it  a  desirable  form  of 
teaching.''^  The  teachers  themselves  having  in  the  mean- 
time become  accustomed  to  the  idea  of  an  oral  law  equal 
in  authority  to  the  written  Law,  now  considered  it  unneces- 
sary to  seek  scriptural  proof  for  each  and  every  law.  They 
would  occasionally  even  separate  Halakot,  based  upon 
sound  scriptural  proofs,  from  their  Midrash  bases  for  the 
purpose  of  presenting  them  more  systematically  in  Mishnah- 
form.  R.  Akiba,  the  boldest  advocate  of  new  Midrash- 
methods,  was  himself  the  one  who  helped  to  retain  the 
Mishnah-form  by  improving  it  and  introducing  therein 
the  principle  of  topical  arrangement. 

Thus,  out  of  the  one  form  evolved  our  Mishnah,  a 
collection  of  Halakot  in  independent  form  arranged 
topically.  Out  of  the  other  developed  our  halakic  Mid- 
rashim,  Mekilta,  Sifra,  and  Sifre,  which  furnish  a  running 
commentary  on  the  Books  of  the  Law. 

''■'  This  may  seem  as  if  we  accepted  the  view  of  Frankel  and  Weiss 
about  the  advantages  offered  by  the  systematic  arrangement  of  the  Mishnah. 
But  it  was  only  after  the  Mishnah  had  been  long  in  use  and  developed  its 
system  of  grouping  that  it  could  be  deemed  advisable  to  arrange  all  the 
Halakot  in  Mishnah-form,  while  Frankel  and  Weiss  assume  that  these 
advantages  offered  by  the  Mishnah  in  its  later  stage  only  were  the  cause  of 
the  change  from  Midrash  to  Mishnah.  This,  of  course,  is  wrong,  as  the 
earlier  Mishnah  did  not  offer  these  advantages. 


Ill 

In  the  above  we  have  ascertained  the  date  and  the 
reason  for  the  introduction  of  the  Mishnah-form,  and  have 
traced  its  gradual  adoption  by  the  teachers.  Now  that 
we  know  the  motives  for  its  first  use,  and  the  causes  for 
its  extensive  adoption,  we  may  be  able  to  explain  the 
strange  silence  of  the  talmudic-rabbinic  sources  concerning 
this  significant  change  in  the  form  of  teaching  and  all  its 
important  consequences. 

For  this  purpose  we  need  only  to  review  the  main 
points  in  this  whole  process  and  examine  them  with 
reference  to  their  possible  effect  upon  the  theories  of  the 
later  Rabbis.  We  shall  then  be  able  to  judge  whether 
these  later  teachers  had  cause  for  ignoring  these  facts  and 
for  remaining  silent  about  them. 

We  have  found  that  the  first  motive  for  teaching  inde- 
pendent Halakot  in  the  Mishnah-form  was  the  fact  that 
during  a  period  of  time  when  there  was  no  official  activity 
of  the  teachers,  certain  customs  and  practices  came  to  be 
observed  by  the  people.  These  customs  and  practices 
subsequently  had  to  be  recognized  and  taught  by  the 
teachers  as  religious  ordinances,  although  no  proof  or 
scriptural  basis  for  them  existed.  This  means  that  certain 
religious  practices,  considered  by  the  later  teachers  as  part 

99 


lOO  MIDRASH    AND    MISHNAH 

of  the  traditional  law,  or  as  handed  down  from  Moses, 
originated  in  reality  from  other,  perhaps  non-Jewish, 
sources,  and  had  no  authority  other  than  the  authority 
of  the  people  who  adopted  them.  This,  of  course,  reflects 
unfavourably  upon  the  authority  of  the  traditional  law 
in  general.  We  have,  furthermore,  seen  that  the  teachers 
themselves  could  not  agree  in  regard  to  the  origin  of 
certain  laws.  While  some  teachers  endeavoured  to  find 
artificial  supports  for  these  laws,  using  even  forced  in- 
terpretations for  the  purpose  of  giving  them  scriptural 
endorsement,  others  preferred  to  accept  them  as  traditional 
laws,  presumably  of  ancient  Jewish  origin.  This  disagree- 
ment among  the  earlier  teachers  in  regard  to  the  origin 
and  authority  of  certain  laws  speaks  very  strongly  against 
two  fundamental  theories  of  the  later  talmudic  teachers, — 
theories  that  were  considered  almost  as  dogmas.  One  is 
the  belief  in  an  oral  law,  ns  bv^c  niin,  handed  down  from 
Moses  together  with  the  written  Torah.  The  second  is 
the  belief  in  the  validity  of  the  laws  which  the  wise  teachers 
derived  from  the  Torah  by  means  of  their  new  interpreta- 
tions, D^oan  cnnro.  The  disagreement  noted  above  shows 
unmistakably  that  in  earlier  times  these  two  theories  were 
disputed  and  neither  was  accepted  by  all  the  teachers. 
For  some  teachers  hesitated  to  recognize  the  authoritative 
character  of  certain  laws  merely  on  the  ground  that  they 
were  traditional.  Therefore  they  felt  constrained  to  seek 
proofs  for  these  laws  in  the  Torah.  On  the  other  hand, 
there  were  teachers  who  objected  to  the  validity  of  the 
new  interpretations  by  which  certain  laws  were  proved 
from  Scriptures.  They  pinned  their  faith  to  the  traditional 
character  of  these  laws.  Thus  these  earlier  differences 
between  the  teachers  could  be  used  as  a  strong  argument 


MIDRASH    AND    MISHNAH  lOI 

against  the  authority  of  their  teachings.  This  fear  was 
actually  entertained  b\'  the  later  teachers. 

Again,  wc  have  seen,  that  one  of  the  motives  for  using 
the  Mishnah-form  was  the  desire  on  the  part  of  the 
Pharisaic  teachers  to  assert  their  authority  and  indispensa- 
bilit}'.  This  is  apparently  at  variance  with  another  theory 
of  the  Talmud,  viz.  the  belief  that  from  Moses  until  the 
Tannaim  there  was  an  uninterrupted  succession  of  teachers 
of  the  law,  recognized  as  the  chief  religious  authorities 
whose  direct  and  undisputed  successors  were  the  Pharisees. 
However,  the  fact  that  the  early  Pharisaic  teachers  had 
to  assert  their  authority  against  the  opposition  of  the 
Sadducees,  shows  that  these  teachers  were  new  claimants 
to  authority.  This  fact,  as  we  have  seen,  reveals  the  true 
state  of  aftairs,  viz.  that  the  priestly  teachers,  the  Sadducees, 
were  originally  the  authoritative  teachers,  whom  the 
Pharisees  subsequently  tried  to  supplant. 

Thus,  we  see  that  the  real  conditions  which  accompanied 
the  change  from  Midrash  to  IMishnah  cast  many  unfavour- 
able reflections  upon  the  theories  and  views  held  by  the 
later  Pharisaic  teachers,  the  Rabbis  of  the  Talmud.  We 
can,  therefore,  well  understand  the  silence  of  the  Rabbis 
about  this  important  change.  They  did  not  care  to  dwell 
upon  facts  which,  if  misunderstood,  would  reflect  on  their 
theories.  They  hesitated  to  refer  too  frequently  to 
circumstances  from  which  some  people  might,  by  mis- 
interpretation, draw  such  conclusions  as  would  shake  the 
foundation  of  the  whole  system  of  the  traditional  teachings,"^ 

"8  That  the  Pharisaic  teachers  had  such  apprehensions  is  evident  from 
the  following  saying  of  R.  Eleazar  b.  Azariah  (or,  according  to  Rashi, 
R.Joshua   b.  Hananiah^   inHagigahsb:   "iT    Hy'JJ   H^O    D''i'")Lj:    nnr:D*m 

D'r:3n  n^j^^n  i^x  ,ni2iDj<  -^yn  pnm  pna  nTn  nm  ?|N  nnni  n-12 

L.  113 


I02  MIDRASH    AND    MISHNAH 

This  was  not  done  with  the  intention  of  suppressing  historic 
facts,  as  they  indeed  mentioned  these  facts.  They  would 
speak  of  them  to  those  pupils  who  were  prepared  to  see 
things  in  their  proper  light,  and  were  not  disposed  to 
misinterpret  them.  They  deemed  it  unwise  to  discuss 
these  matters  before  the  pupils  at  large,  fearing  that  there 
might  be  among  them  some  who  could  be  misled  by 
opponents  and  thus  arrive  at  erroneous  conclusions.  This 
is  a  course  of  conduct  followed  by  the  teachers  in  regard 

]'-\ni2r2  i^^ni  psr^uro  hbn  nmnn  ppoiyi  maiDs*  niLiDx  rn-j'i"'::' 
mx  "itDN^  st:*^  .;n''-ii'r?o  i^?ni  pi'Dia  'hbn  pTno  li^^ni  p-ioix  'i^bn 
ba  ,nn.s  n';)'\}2  ):n:  D^n  ijdi^  mD^n  lnn])D  min  iJ2b  ".a  T^'t 
Nin  inn  D^'J'yf^n  b:i  jnx  ^2»  p':x  nnx  ona  |jnj  inx  (compare 

also  Num.  r.  XIV,  4).  We  have  in  this  saying  both  a  defence  on  the  part 
of  the  Pharisaic  teachers  for  making  the  Torah  grow  and  increase  so  as  to 
contain  more  than  its  plain  words  warrant,  as  well  as  a  refutation  of  the 
arguments  advanced  against  them  that  their  ver3''  disagreement  in  many 
questions  speaks  against  their  having  reliable  traditions.  Against  tliis 
accusation  the  Pharisaic  teachers  insist  that  ail  their  teachings  come  from 
the  same  source,  the  same  leader,  Di"l£,  Moses  gave  them  in  the  name 
of  God.  We  see  from  this  that  such  arguments  were  raised  against  the 
Pharisees  by  their  opponents,  for  the  phrase,  D1X  "IT^S'  SJOC  '  Lest  some 
might  say ",  is  here  not  meant  altogether  in  a  hypothetical  sense.  It  refers 
to  certain  people  who  actual!}-  raised  the  question.     Compare  the  saying  : 

bbr\  n''3:D   nD^m   D^^n  D^-lt'x  nan  lisNi  i^s*   nijrxi  bip  nn  nni"" 

'  A  heavenly  voice  was  heard  declaring  that  both  the  words  of  the  School 
of  Hillel  and  the  words  of  the  School  of  Shammai  [despite  their  disagree- 
ments] are  the  words  of  the  living  God,  but  the  practical  decision  should 
be  according  to  the  words  of  the  School  of  Hillel'  (Erubin  13  b).  Compare 
also  the  passage  in  Gittin  6  b,  where  Elijah  is  reported  to  have  said  that 
God  declared  both  the  opposing  views  of  R.  Abiathar  and  R.  Jonathan 
to  be  the  words  of  the  living  God.  All  these  utterances  were  intended 
to  serve  as  a  refutation  of  the  attacks  made  against  the  teachings  of  the 
Rabbis  on  account  of  their  disagreements.  We  see  from  these  covert 
replies  of  the  Rabbis  that  the  arguments  of  the  Karaites  against  the 
Rabbanites  (see  below,  note  85)  were  not  original  with  the  Karaites,  but 
were  repetitions  of  older  arguments. 


MIDRASH    AND    MISHNAH  103 

to   still  Other  subjects  which  they  likewise  deemed   unsafe 
to  communicate  to  the  public  at  large. "^ 

This  course  was  not  altogether  culpable,  seeing  that 
it  was  animated  by  no  selfish  motive,  and  .that  it  was 
pursued  for  the  sake  of  the  cause  which  the  Rabbis  wished 
to  serve.  They  were  desirous  of  having  their  teachings 
accepted  by  the  people  as  authoritative.  They  therefore 
refrained  from  dwelling  upon  the  fact  that  there  was  once 
a  time  when  some  people  did  not  accept  these  teachings 
as  authoritative.  Instead  of  reporting  in  detail  the  earlier 
struggles  of  the  Pharisaic  teachers  for  recognition,  and 
their  disputes  with  their  opponents,  they  dwelt  more 
frequently  on  the  continuous  chain  of  tradition  by  which 
they  received  their  teachings.  They  mentioned  only  those 
teachers  and  members  of  the  Sanhedrin  who  were  of  the 
Pharisaic  party,  whom  they  considered  as  having  always 
been  the  true  religious  leaders  of  the  people.  They  quite 
overlooked  the  fact  that  their  opponents,  the  Sadducees, 
were  the  ruling  authorities  in  former  times.  Instead  of 
making  explicit  mention  of  the  origin  of  the  Mishnah-form, 
which  would  reveal  the  late  date  of  so  many  traditional 
laws,  they  assumed  the  fact  that  the  two  Laws,  the  written 
and  the  oral,  w^ere  both  handed  clown  by  Moses  through 
the  agency  of  an  uninterrupted  chain  of  true  teachers,  the 
bearers  of  tradition.  The  result  was  that  to  most  of  the 
later  teachers,  especially  the  Amoraim,  the  origin  and 
development  of  the  Mishnah-form  was    almost   unknown. 

'^  The  same  was  done  with  the  records  of  the  families  which  the  Rabbis 
did  not  care  to  teach  or  discuss  in  public,  fearing  to  cause  unpleasant 
controversies.  They  would  hand  them  over  to  their  chosen  pupils 
(b.  Kiddushin  71a).  The  same  was  the  case  with  certain  ineffable  names 
of  God  which  they  communicated  only  to  a  few  chosen  pupils,  lest  the 
multitude  misunderstand  the  significance  of  these  names  [ibid.\ 

H3 


I04  MIDRASH    AND    MISHNAH 

The  time  when  this  change  was  made,  the  motives  that 
caused  it,  and  the  circumstances  that  accompanied  it,  were 
almost  forgotten.  They  were  known  only  to  a  very  few 
of  the  later  teachers.  These,  like  their  predecessors,  the 
early  teachers,  did  not  care  to  speak  about  them.  The 
later  Tannaim,  and  even  the  Amoraim,  had  the  same 
reasons  for  avoiding  the  mention  of  these  conditions  that 
led  to  the  adoption  of  the  Mishnah-form  as  had  the  earlier 
Pharisaic  teachers  for  their  silence  about  these  facts.  Just 
as  the  earlier  Pharisaic  teachers,  so  the  later  teachers,  i.  e. 
the  Rabbis,  had  to  contend  with  more  or  less  opposition. 
They  had  to  combat  those  who  denied  their  authority  and 
rejected  their  teachings,  i.  e.  the  traditional  law. 

After  the  destruction  of  the  Temple  and  the  dissolution 
of  the  Jewish  state,  the  Sadducees  ceased  to  be  a  powerful 
party  and  lost  their  former  influence  among  the  people. 
However,  it  would  be  a  mistake  to  assume  with  Biichler 
{Dcr  galildiscJie  Am  Jia-Arcz^  Wicn  1906,  p.  5)  that  in  the 
beginning  of  the  second  century  C.  E.  the  Sadducees  had 
altogether  disappeared.  They  continued,  if  not  as  an 
influential  party,  nevertheless  as  a  group  of  people  holding 
peculiar  views  about  the  Torah,  denying  the  binding 
character  of  the  traditional  law  and  rejecting  the  authority 
of  the  Rabbis  who  w'ere  the  advocates  of  that  traditional 
law.  We  have  evidence  of  their  existence  throughout  the 
entire    tannaitic    period. ^'^      Many    sayings     of    the    later 

^°  R.  Jose  b.  Halafta  declares  (M.  Niddah  IV,  2)  that  the  daughters 
of  the  Sadducees  are  to  be  considered  as  daughters  of  Israel,  except  in 
cases  where  we  know  that  the}'  are  determined  to  follow  in  their  observance 
the  ways  of  their  forefathers  (i.  e.  the  former  Sadducees).  The  reason  for 
this  view   of   R.   Jose  is   found    in  his  other  saying  where  he  states  the 

following:  j'lH  DVr^n^  Di  niNic  DHi  \>2r\  fD  nnv  jnn  ixs*  pNV3 
nnt:i  D'CDn^  m  nnxin  ^^  ij\-i:i3u*a  nriMi:'  nns*  n^'xro  'We  are 


MIDRASH    AND    MISHNAH  T05 

Tannaim  refer  to  them,  though  they  do  not  always  desig- 
nate them  expressly  by  the  name  Sadducees.     They  even 

very  well  informed  about  them.  They  all  show  their  blood  to  the  wise 
teachers  (i.  e.  the  Rabbis).  There  was  only  one  [Sadducean]  woman  in 
our  neighbourhood  who  would  not  do  so,  but  she  is  dead  now'  Toselta  V, 
3,  b.  Niddah  33b).  Buechler  {JQR.,  1913,  446)  erroneously  takes  this 
saying  of  R.Jose  to  be  merely  another  version  of  what  the  high  priest's  wife 
told  her  husband.  Such  an  interpretation  of  R.  Jose's  saying  is  absolutely 
unwarranted.  R.  Jose  describes  conditions  prevalent  in  his  own  day. 
He  justifies  his  attitude  towards  the  Sadducean  women  by  the  information 
that,  with  few  exceptions,  they  follow  the  Pharisaic  regulations  in  observing 
the  laws  of  menstruation.  This  shows  that  in  the  time  of  R.  Jose  b.  Halafta, 
i.e.  about  the  middle  of  the  second  century  c.e.,  there  still  were  Sadducees. 
Their  wives,  however,  would,  in  most  cases,  be  guided  by  the  decisions  of 
the  Rabbis  in  regard  to  the  observance  of  the  laws  about  menstruation. 
The  same  R.  Jose  also  says  (M.  Parah  III,  3),  T\\^-h  D^l'l^*^  ^'P'^  l^^  ^S 
'  Do  not  give  the  Sadducees  an  opportunity  lo  rebel  (i.  e.  controvert  us  in 
argument) ',  and  this  again  shows  that  in  his  time  there  were  Sadducees 
who  still  argued  against  the  teachers. 

These  Sadducees  are  also  referred  to,  though  not  expressly  designated 
by  the  name  Sadducees,  in  the  sayings  of  other  teachers  of  that  time.  Thus 
the  passage  in  Num.  15.  31,  '  He  hath  despised  the  word  of  the  Lord  ',  is 
explained  by  R.  Nathan  in  a  Baraita  (Sanhedrin  99  a)  to  refer  to  one  who 
disregards  the  Mishnah,  nrj'Cn  bv  riTJ'D  1J'•^*:^'  nO  ^3,  that  is  to  say, 
one  who  denies  the  traditional  law.  In  another  Baraita  (ibid.)  it  is  stated 
that  the  expression,  '  He  hath  despised  the  word  of  the  Lord ',  applies  even 
to  such  people  who  would  accept  the  entire  Torah  as  divine  but  would  take 
exception    to  a  single   detail   in   the   traditional   interpretation  :    73    If^lSn 

An  anonymous  saying  in  Sifra,  Behukkotai  II  (Weiss  iiib)  interprets  the 
passage,  '  But  if  ye  will  not  hearken  unto  Me'  (Lev.  26.  14),  to  mean,  '  If 
ye  will  not  hearken  to  the  interpretation  given  by  the  teachers',  N^  DN 
D''tD3n  CmOp  "lUCu'n .  The  saying  continues  and  speaks  of  people  who 
despise  and  hate  the  teachers  although  they  accept  the  laws  given  on  Sinai. 
All  these  utterances  were  certainly  not  made  without  provocation.  There 
must  have  been  people  who  accepted  the  Torah  and  disputed  the 
rabbinical  laws. 

Another  teacher,  R.  Joseb.  Judah,  living  in  the  second  half  of  the  second 
century,  rules  that  if  a  Gentile  wishes  to  accept  the  Law  \vith  the  exception 
of  even  one  detail  of  the  rabbinical  regulations,  we  should  not  admit  him 
as  a  proselyte  (Tosefta,  Demai  II,  5  ;  Bekorot  30b).    This  shows  that  there 


Io6  MIDRASH    AND    MISHNAH 

lingered  on  in  the  time  of  the  Amoraim.^^  Throughout 
the  entire  period  of  the  Amoraim  there  were  certain  people 

must  have  been  Jews  who  rejected  the  rabbinical  laws.  Therefore  it  could 
occur  to  a  Gentile  that  it  was  possible  to  become  a  Jew  without  accepting 
all  the  rabbinical  laws. 

This  is  also  evident  from  the  following  storj-  told  in  Jerushalmi,  Shebiit  IX, 
39  a.  A  certain  man  who  disregarded  the  regulations  regarding  the  sab- 
batical year  instructed  his  wife  to  be  careful  in  separating  the  priest's  share 
from  the  dough  (hallah\  His  wife,  to  whom  this  conduct  seemed  inconsistent, 
asked  him  why  he  insisted  on  the  observance  of  the  hallah-law  when  he  was 
disregarding  the  law  about  the  sabbatical  year.  His  answer  was  :  The  law 
of  hallah  is  biblical,  the  regulations  about  the  sabbatical  3'ear  are  rabbinical, 
having  originated  with  R.  Gamaliel  and  his  colleagues,  Hlin  1310  n?n 
Vn^nm  i^N'^?:^  pailO  n^yUuV  This  shows  beyond  any  doubt  that  there 
were  people  who  observed  the  Torah  strictly  but  who  denied  the  validity 
of  the  rabbinical  teachings. 

*i  R.  Hanina  and  Abba  Areka  (Rab),  Amoraim  of  the  first  generation 
(first  half  of  the  third  century  c.  e. ),  describe  the  Epicuros  as  one  who 
despises  the  teachers,  D^lDIin  ^l^C?n  HDCn  (b.  Sanhedringgb).  R.  Johanan, 
an  Amora  of  the  second  generation,  and  R.  Eleazar  b.  Pedat,  an  Amora  of 
the  third  generation  (second  half  of  the  third  century),  characterize  the 
Epicuros  as  one  who  says  (in  a  tone  expressive  of  contempt),  '  That  teacher  ', 
N12D  pN*  "IITNT  ]r\:>,  or  as  one  who  says,  'Those  Rabbis',  IDNT  fn3 
P32"l  |V''N  (p.  Sanhedrin  X.  27  d).  Buechler  makes  the  mistake  of  reading 
]r\b  instead  of  pD,  and  therefore  makes  the  saying  refer  to  'a  priest'  who 
uses  that  contemptuous  expression  about  the  Rabbis  {Der  GalildiscJic  Ant 
ha-Arez,  p.  187).  This  is  palpably  wrong.  The  same  characterization  of 
the  Epicuros  is  given  by  R.  Papa,  an  Amora  of  the  fifth  generation  (second 
half  of  the  fourth  century):  pm  ''JH  "ICN"!  p:3  (b.  Sanhedrin  looa). 
R.  Joseph,  an  Amora  of  the  third  generation,  applies  the  name  Epicuros 
to  a  class  of  people  who  say,  '  Of  what  use  have  the  Rabbis  been  to  us ' 
pm  J^  UnS  VSJD  nCN'T  ^Jn  p23  {Hid.).  Raba,  an  Amora  of  the  fourth 
generation  (first  half  of  the  fourth  century),  refers  to  a  certain  family  of 
Benjamin  the  ph3-sician  who  said,  '  Of  what  use  have  the  Rabbis  been  to  us  ; 
they  have  never  allowed  a  raven  or  forbidden  a  dove '  {ibid.).  This  is 
a  saying  which  seems  to  express  that  we  do  not  need  the  Rabbis,  the 
biblical  laws  being  clear  enough.  These  people  lived  according  to  the  Law, 
and  as  stated  in  the  Talmud  {ibid.)  would  occasionally  consult  Raba  con- 
cerning some  ritual  question.  Their  ridiculing  remark  about  the  Rabbis 
was  evidently  the  expression  of  their  peculiar  attitude  towards  the  teachings 
of  the  Rabbis  and  of  their  opposition  to  the  latter's  authorit3-. 


MIDRASH    AND    MISHNAH  I07 

who  upheld  the  views  and  ideas  of  the  old  Sadducees. 
They  were  opposed  to  the  authority  of  the  Rabbis,  and 
rejected  their  teachings.  They  were  no  longer  called 
Sadducees.  They  were  designated  as  '  Epicureans ', 
Dmp'2N,  or  referred  to  without  any  special  name,  merely 
as  '  people  who  deny  the  authority  of  the  Rabbis  and 
reject  the  traditional  law  ".  These  anti-rabbinic  elements 
of  the  talmudic  period  formed  the  connecting  link  between 
the  older  Sadducees  and  the  later  Karaites.--  Knowing, 
that  the  Sadducean  tendencies  continued  throughout  the 
entire  period  of  the  Talmud,  and  had  both  open  and 
secret  adv^ocates,  we  can  readily  understand  why  the 
talmudic  teachers  hesitated  to  report  indiscriminately  all 
the  details  of  the  disputes  between  the  Pharisees  and 
Sadducees,  and  also  all  the  differences  of  opinion  and  the 
disagreement  as  to  methods  among  the  Pharisees  them- 
selves. All  these,  as  we  have  seen,  were  the  causes  that 
led  to  the  adoption  of  the  Mishnah-form.  The  talmudic 
teachers  were  careful  not  to  place  weapons  in  the  hands  of 
their  opponents. 

Thus  the  strange  fact  is  explained  wh)'  no  explicit 
report  about  this  matter  was  preserved  in  the  talmudic 
literature.  Only  a  few  occasional  remark's  which  escaped 
the  teachers  hint  at  the  actual  historic  conditions,  and 
they  show  us  that  a  knowledge  of  the  real  facts  did  exist 
among  some  of  the  teachers. 

The  Geonim,  likewise,  seem  to  have  had  a  purpose  in 
avoiding  the  mention  of  these  significant  points  in  the 
historic  development  of  the  Halakah.     When  occasionally 

*2  Compare  Friedmann  in  his  Introduction  to  the  Seder  Ehahu  Rabba, 
&c.,  Wien  1902.  pp.  97-8,  and  Harka\y,  Zur  Eiitsieliung  dcs  Karaisiims, 
in  Graetz's  Geschichte,  V,  pp.  472  ft". 


lo8  MIDRASH    AND    MISHNAH 

forced  to  speak  about  the  same,  they  reveal  by  their  very 
reticence  as  much  as  by  their  casual  remarks  that  they 
had  knowledge  of  the  facts.  We  pointed  out  above  the 
awkward  pause  in  the  letter  of  R.  Sherira  Gaon.  In 
answer  to  the  question  of  the  people  of  Kairuan  regarding 
the  origin  of  the  Mishnah  and  the  Sifra  and  Sifre,  the 
Gaon  was  compelled  to  speak  about  the  Midrash  and  the 
Mishnah.  He  barely  touches  upon  the  subject  of  the  Alid- 
rash,  saying  merely  that  this  was  originally  the  exclusive 
form.  Here  he  stops  abruptly  and  turns  to  another  subject, 
viz.  the  Baraita  collections  of  R.  Hiyya  and  R.  Oshaya. 
We  might  assume  that  something  is  missing  in  the  text 
of  the  letter.'^'^  This,  however,  is  improbable.  It  is  almost 
evident  that  R.  Sherira  broke  off  in  the  middle  of  a 
thought,  because  he  deemed  it  unwise  to  say  any  more 
about  the  adoption  of  the  Mishnah-form  in  addition  to  the 
Midrash. 

This  reluctance  on  the  part  of  the  Geonim  to  speak 
about  this  subject  is  more  noticeable  in  the  responsum  of 
R.  Zemah  Gaon.  Tiie  people  of  Kairuan  inquired  of  R. 
Zemah  Gaon  regarding  the  attitude  to  be  taken  towards 
Eldad.  Eldad  reported  that  in  the  Talmud  of  his  own 
people  the  names  of  individual  teachers  were  not  mentioned. 
As  in  our  Talmud  differences  of  opinion  and  names  of 
individual  teachers  are  mentioned,  they  found  this  report 
of  Eldad  very  strange.  Zemah  answered  that  this  was  not 
a  reason  for  doubting  the  character  of  lildad  and  his 
teachings,  because  the  method  described  by  Eldad  was 
indeed  the  earlier  mode  of  teaching.  He  states  that  in  the 
time  of  the  Temple,  when  they  taught  all  the  traditional 
law  in  the  Midrash-form,  they  did  not  mention  the  names 

^^  See  above,  note  9. 


iMIDRASH    AND    MISHNAII  109 

of  individual  teachers.**  Now,  this  would  seem  to  be  a 
sufficient  answer,  and  he  should  have  stopped  here.  But 
R.  Zemah  Gaon  adds  the  following  significant  words  : 
rxi  pmL"  bn  "ins*  py?::?2"i  m?:>!?n3  pn  nrj-rra  pn  n\t  nnx  nninni 
"im  nriDH  n\n^N  nus  -irrsTJ'  ,n3i  b:i  c-12^  pr:  'The  Torah 
is  one.  It  is  embodied  in  the  Mishnah  and  in  the  Talmud. 
All  draw  from  one  and  the  same  source.  It  is  not  advisable 
to  explain  everything,  for  it  is  said  :  It  is  the  glory  of  God 
to  conceal  a  thing  (Prov.  25.  3).'  Why  this  mysterious 
admonition,  and  what  was  the  secret  he  sought  to  hide  ? 
The  account  of  the  origin  of  the  Mishnah-form,  given 
above,  will  help  us  to  understand  the  need  for  the  admoni- 
tion and  the  nature  of  the  secret.  The  Karaites  in  the 
time  of  the  Geonim  denied  that  the  teachings  of  the 
Mishnah  and  Talmud  embodied  the  true  tradition.  They 
characterized  these  teachings  as  later  rabbinic  inventions. 
In  support  of  their  attitude  they  instanced  the  numerous 
disagreements  and  frequent  disputes  of  the  Rabbis  of  the 
Talmud.  They  argued,  How  could  there  have  been  tradi- 
tion among  the  teachers  when  there  was  no  agreement 
among  them  as  to  their  teachings  and  Halakot.^'^ 

We  have  seen  above  that  the  history  of  the  development 
of  the  Mishnah-form  reflects  unfavourably  upon  the  tra- 
ditional character  of  the  Pharisaic  teachings.  This  was 
the  reason  for  the  talmudic  silence  about  the  origin  of  the 
Mishnah-form.  The  Geonim  were  silent  on  this  point  for 
the  same  reason.  Neither  Zemah  nor  Sherira  wanted  to 
state  exactly  how  long  the  r^Iidrash  continued  in  exclusive 

^^  See  above,  note  33. 

^^  See,  for  instance,  the  arguments  used  by  Sahl  ben  Mazliah  (Pinsker, 
Likkiitc  Kadmoniyyot,  Nispahim,  pp.  26,  35  .  The  same  arguments  are 
raised  by  many  other  Karaitic  writers. 


no  MIDRASH    AND    MISHNAH 

use,  for  it  would  have  shown  that  the  Mishnah  was  of 
comparatively  late  origin,  and  that  its  adoption  was  due 
mainly  to  the  differences  of  opinion  that  arose  between  the 
Pharisaic  teachers  and  the  earlier  authorities,  the  Sadducees, 
When  compelled  to  refer  to  the  time  when  Midrash  was  in 
exclusive  use,  both  Zemah  and  Shcrira  used  the  vague  term 
cnpf^n '  in  the  Temple  times '.  This,  however,  as  we  have  seen, 
can  refer  only  to  the  time  before  the  division  of  the  parties.^*" 

^^  It  is  possible  that  the  use  of  the  term  C'lpD^  in  this  peculiar  sense 
was  suggested  to  Zemah  and  Sherira  b}'  a  passage  in  Mishnah  Berakot  IX,  5, 
\vhere  the  term  is  likewise  used  in  referring  to  a  custom  that  was  prevalent 
in  the  Temple  during  the  time  previous  to  the  division  of  the  parties.  The 
passage  in  the  Mishnah  reads  as  follows  :  C'TpOn   Villi'   m^in   ^DriTI    ^D 

nns*  N^x  D^iy  j\s  nroxi  D'P'ivn   i^p^p::'0  D/iyn   p  nnr:iN   vn 

ohl'n  nj,n  nhyn  JD  D'-1Q1X  ViTL"  l^^prin.  [The  text  in  the  editions 
of  the  Mishnayot  reads  C'^nDH  1^pbp'-"t2,  but  in  the  Talmud-editions  the 
reading  is  D'pni*n  ^,pbp'^D,  which  is  the  correct  reading.  Compare 
A.  Schwartz,  Tosifta  Zeraun  (Wilsa,  1890),  p.  57,  note  189.]  Here  we  have 
the  report  of  a  Pharisaic  regulation  aimed  agamst  the  Sadducees  who 
rejected  the  belief  in  a  future  world.  Here  the  term  CnptD3,  while 
designating  the  place,  i.  e.  the  Temple,  also  includes  an  element  of  time. 
'  In  the  Temple '  evidently  refers  to  the  time  prior  to  this  Pharisaic  regu- 
lation, i.  e.  prior  to  the  division  of  the  parties.  The  Pharisaic  regulation 
reported  in  this  passage  originated  in  the  very  earl^'  da3's  of  the  differences 
between  the  Sadducees  and  Pharisees,  and  not  as  Buechler  {Priester  itnd 
Cultus,  p.  176)  assumes,  in  the  last  decade  of  the  existence  of  the  Temple. 
This  is  evident  from  the  fact  that  in  the  same  paragraph  the  Mishnah  reports 
another  regulation  which  no  doubt  originated  in  the  early  da^'s  of  the 
differences  between  the  priests  and  la^-  teachers.  This  other  regulation 
prescribed  that  a  man  should  use  the  name  of  God  in  greeting  his  neighbour. 
'Ihis  was  either  a  reaction  against  the  religious  persecution  under  Antiochus 
when  it  was  forbidden  to  mention  the  name  of  God  i^comp.  b.  Rosh  ha-Shanah 
18  b  and  Meg.  Taanit  VII),  or  according  to  Geiger  {Jildische  Zeitschrift,V, 
p.  107  ;  comp.  also  Urschrift,  pp.  264  ff.)  it  was  to  emphasize  the  claim  of 
the  Pharisees  to  use  the  name  of  God  as  the  priests  did.  Anyhow,  this 
second  regulation  originated  in  the  very  earliest  daj'S  of  the  division  of  the 
parties.  From  this  we  may  conclude  that  the  first  regulation  also  originated 
at  the  same  time.     It  is  quite   e\ident  that  the  author  of  this  report  in  our 


MIDRASH    AND    MISIINAH  III 

Shcrira,  who  was  merely  asked  about  the  origin  of  the 
Mishnah  and  the  halakic  Midrashim,  could  easily  avoid 
mentioning  anything  he  did  not  desire  to  state.  He  limited 
himself  to  answering  the  questions  put  before  him.  He 
stated  that  the  Midrash  was  the  earlier  form,  used  ex- 
clusiveK'  in  the  earlier  days  of  the  second  Temple.  He 
was  careful,  however,  not  to  define  this  ueriod.  He  also 
told  them  the  history  of  the  Mishnah.  He  could  well 
refrain  from  stating  why  the  Mishnah  was  introduced  as 
an  additional  form  to  the  Midrash,  for  he  was  not  expressly 
asked  about  this  point.  His  questioners  did  not  ask  why 
a  change  in  the  form  of  teaching  was  made,  and  probably 
did  not  know  that  the  Mishnah-form  was  the  result  of 
such  an  important  change.  Sherira  did  not  find  it  neces- 
sary to  enlighten  them  about  this  point. 

R.  Zemah  found  himself  in  a  more  difficult  position. 
He  was  compelled  to  commit  himself  to  some  extent.  He 
was  expressly  asked  why  in  Eldad's  Talmud  no  names  are 
mentioned,  while  in  our  Talmud  many  names  of  debating 
teachers,  representing  conflicting  opinions,  are  found.  This 
question  implied  a  doubt  in  the  minds  of  the  questioners 
concerning  the  authority  of  our  Talmud.  R.  Zemah  had 
to  address  himself  to  this  doubt.  He  first  admits  that 
originally  all  teachings  were  given  in  the  Midrash-form. 
Since  in  this  form  all  teachings  are  presented  as  interpreta- 
tions of  the  written  Torah  and  not  as  opinions  of  the 
teachers,  the  names  of  the  teachers  were  therefore  not 
mentioned.  He  also  avoids  definite  dates,  using  like  Sherira 
the  vague  term  '  in  Temple  times '  to  designate  the  period 
of  the  exclusive   use  of  the  Midrash.     However,  he  still 

Mishnah  mentions  these  two  regulations  in  the  same  paragraph  to  denote 
their  simultaneous  orisrin. 


112  MIDRASH    AND    .MISHNAH 

fears  that  the  people  might  be  led  to  doubt  the  traditional 
character  of  the  Mishnah  on  account  of  the  disputes  and 
opposing  views  of  individual  teachers  that  are  found  in  it. 
He  therefore  admonishes  the  questioners  to  entertain  no 
doubts  about  the  Alishnah  and  the  Tahnud,  but  to  con- 
sider them  as  coming  from  the  same  source  as  the  written 
Torah  and  as  being  one  with  the  Torah.  This  admonition 
of  R.  Zemah  Gaon  is  a  warning  against  the  Karaites  of 
his  day.  It  is  of  the  same  character  as  the  warning 
uttered  by  Joshua  b.  Hananiah  (Hagigah  3  b)  against  the 
Sadducees  of  his  own  time.^'^ 

The  result  of  our  inquiry  into  the  cause  of  the  talmudic- 
rabbinic  silence  about  our  subject  may  be  summed  up  in 
the  following  conclusions.  The  early  Pharisaic  teachers 
refrained  from  pointing  to  the  causes  for  the  adoption  of 
the  Mishnah-form,  and  to  its  effects  upon  the  development 
of  the  Halakah,  in  order  not  to  strengthen  the  position  of 
their  opponents,  the  Sadducees.  The  later  talmudic 
teachers  similarly  avoided  discussion  of  these  subjects  out 
of  fear  of  those  of  their  opponents  who  followed  the  old 
Sadduccan  doctrines.  The  Geonim,  in  like  manner,  re- 
frained from  mentioning  these  facts,  in  order  not  to  place 
weapons  in  the  hands  of  their  opponents,  the  Karaites. 

*''  At  the  end  of  his  responsum  (YelHnek,  Beth  Hantidrash,  II,  p.  113) 
Zemah  repeats  his  warning  not  to  deviate  from  the  Talmud  and  the  teachings 
of   the   Rabbis    in   the   following  words :  TnS*    p^yjO?:^'   £2^    "i:ymn    '^22^ 

TL^'N•  ni^.nn  '2  bv  -iri:D  pc^  cnn^n  b'z  nnsvo  b^izz^  p?::'  i::n  i'Ni 

XZ'VT\  n^b  nj:X''  nCX  ::2i:'r2n  H"t  "rnV.  This  repetition  of  the  ad- 
monition and  the  citation  of  the  passage  in  Deut.  17.  11,  so  often  used  by 
the  Rabbis  is  support  of  the  authority  of  their  traditional  teachings,  further 
proves  that  Zemah  aimed  to  allay  any  disquieting  doubts  in  the  minds  of 
the  people  in  regard  to  the  traditional  character  of  the  Rabbinical  teachings. 


MIDRASH    AND    MISHNAH  II3 


IV 

Saadya's  Statemkxt  Concerning  the  Beginnings 

OF  the  Mishnah. 

In  the  course  of  our  discussion,  \vc  have  proved  from  a 
tahnudic  report  as  well  as  from  certain  utterances  of  the 
Geonim,  that  the  first  introduction  of  the  Mishnah-form 
took  place  in  the  last  days  of  Jose  b.  Joezer.  There  is  but 
one  gaonic  statement  about  the  beginnings  of  the  Mishnah 
which  seems  to  be  at  variance  with  this  conclusion.  I  refer 
to  the  statement  of  Saad}-a  Gaon  in  his  Scfcr  Hagahtj 
(Schechter,  Saadyana,  p,  5  :  also  quoted  by  a  Karaitic 
writer,  see  Harkavy,  Studicn  itnd  MittciliDigen,  V,  p.  194). 

This  statement  of  Saadya  places  the  time  for  the 
beginnings  of  the  Mishnah  soon  after  prophecy  ceased, 
in  the  fourtieth  year  of  the  second  Temple.  This  is 
apparently  a  much  earlier  date  than  the  time  of  Jose  b. 
Joezer.  A  closer  examination,  however,  will  show  that  the 
period  to  which  Saadya  assigns  the  beginnings  of  the 
Mishnah  is  actually  the  same  as  the  one  which  we  have 
found  given  in  the  Talmud  and  indicated  by  the  Geonim 
R.  Zemah  and  R.  Sherira,  viz.  the  time  of  Jose  b.  Joezer. 
It  is  merely  due  to  the  faulty  chronology,  followed  by 
Saadya,  that  his  date  appears  to  be  earlier  than  the  one 
which  we  fixed  on  the  basis  of  the  evidence  derived  from 
the  Talmud  and  the  statements  of  R.  Zemah  and  R. 
Sherira. 

We  must  keep  in  mind  that  Saadya  followed  the 
rabbinic  chronology  as  given  in  Seder  01am  and  in  the 
Talmud.     This  chronology,  however,  at  least  in  so  far  as 


114  MIDRASH    AND    MISHNAH 

it  relates  to  the  earlier  period  of  the  second  Temple,  is 
absolutely  incorrect.  In  order  to  be  able  to  fix  the  actual 
time  to  which  Saadya's  date  refers,  we  must  first  point 
out  the  peculiarities  of  the  talmudic-rabbinic  chronology 
which  he  followed.  To  account  for  the  errors  and  the 
confusion  in  this  chronology,  it  is  sufficient  to  know  its 
character.  It  is  an  artificial  chronology,  constructed  by 
the  later  teachers  for  the  apparent  purpose  of  establishing 
a  direct  connexion  between  the  true  teachers  of  the  Law, 
that  is  to  say,  the  Pharisees,  and  the  prophets,  and  thus 
to  prove  the  authority  of  the  Pharisaic  teachers  and  the 
traditional  character  of  their  teachings.  Such  a  direct 
connexion  between  the  prophets  and  the  Pharisaic  teachers 
of  the  traditional  law  could  be  established  only  by  utterly 
ignoring  the  time  during  which  the  priests  were  the  sole 
religious  teachers  and  leaders,  and  consequently  contracting 
long  stretches  of  time  into  short  periods.  Hence  all  the 
inaccuracies  in  this  artificial  and  faulty  chronology. 

The  Rabbis  assume  that  the  Pharisaic  teachers  received 
the  Law,  as  well  as  all  their  traditional  teachings,  directly 
from  the  prophets.  In  their  chronology,  therefore,  the 
prophets  are  succeeded  not  by  the  priestly  teachers,  the 
Q^JHD,  but  by  the  Dvosn,  the  wise  lay-teachers.  This  is 
expressed  by  the  Rabbis  in  the  statement:  1S*2:rJ  1X3  ny 
D^?^3n  nm  vf:r'i  in^  un  i^'^xi  jx^d  c^nipn  nnn  D-'s^n^n  (Seder 
Olam  Rabba,  XXX  ;  comp.  also  Seder  01am  Zutta,  VII). 
By  n'^^n  are  evidently  meant  ^S^'C"  ^iD^n,  lay-teachers, 
or  more  exactly,  Pharisaic  teachers,  in  contradistinction  to 
the  priests  or  Sadducees,  the  n^Jn3.  This  is  confirmed  by 
the  fact  that  in  passages  in  the  Mishnah  and  the  Tosefta 
which  likewise  contain  the  idea  that  the  wise  teachers 
directly  succeeded  the  prophets,  the  Zuggot  are  expressly 


MIDRASH    AND    MISHNAH  II5 

mentioned.  Thus  in  Alishnah  Pcah  II,  6  and  Tosefta 
Jaday\'im  II,  16,  \vc  read  that  the  Zuggot,  that  is  to  say, 
the  earliest  Pharisaic  teachers,  received  traditional  laws 
directly  from  the  prophets.  n\X''3^-i  p  'hzp'^'  niJirr^  blY^^. 

The  same  idea  also  underlies  the  statement  in  Mishnah 
Abot  I,  according  to  which  the  Zuggot  received  the  law 
from  the  last  members  of  the  Great  Synagogue.  For, 
according  to  the  Rabbis,  this  Great  Synagogue  also  in- 
cluded tlie  last  prophets  among  its  members.  There  is 
only  one  slight  difference  between  the  line  of  succession 
as  given  in  M.  Abot  and  that  given  in  M.  Peah  and  Tosefta 
Jada}'yim,  namely,  that  the  name  of  Antigonos  is  mentioned 
in  the  former  between  the  Zuggot  and  the  Great  Synagogue. 
However,  in  stating  the  authority  from  whom  the  first  pair 
received  the  Law,  the  Mishnah  (Abot  I,  4)  uses  the  words 
Dnn  )b2''P  '  they  received  from  ^/u-//i '.  This  clearly  shows 
that  the  first  pair,  the  two  Joses,  did  not  receive  the  law 
from  Antigonos  alone.  For,  if  this  were  the  case,  the 
Mishnah  would  have  said  :  "i:?-fO  )^yp  '  they  received  from 
///;// '.  The  expression  Dn?o  vi^P  warrants  the  supposition 
that  the  two  Joses  received  the  Law  from  the  last  members 
of  the  Great  Synagogue,  or  perhaps  Antigonos  was  con- 
sidered to  have  been  the  younger  colleague  of  Simon. 
According  to  this  supposition  there  is  no  discrej^ancy 
between  all  these  talmudic  reports.  They  all  assume  that 
the  last  members  of  the  Great  Synagogue,  among  whom 
were  also  the  last  prophets,  transmitted  the  Law  and  the 
traditions  directly  to  the  Zuggot  or  D'^D^n,  i.  e.  the  earliest 
Pharisaic  teachers. 

This  transmission  of  the  Law  by  the  prophets  to  the 
wise  teachers,  or  the  disappearance  of  the  prophets  and 
the  rise  of  the  Dn::2n,  the  Pharisaic   teachers,  took  place 


Il6  MIDRASH    AND    MISHNAH 

according  to  the  Rabbis,  in  the  time  of  Alexander  the 
Great,  shortly  after  the  overthrow  of  the  Persian  Empire 
(Seder  Olam  Rabba  and  Zutta,  /.  c).  This  rabbinic 
chronology  finds  no  difficulty  in  extending  the  time  of  the 
last  prophets  to  the  end  of  the  Persian  period.  For  by 
some  peculiar  error,  which  wc  are  unable  to  account  for, 
the  Rabbis  reduced  the  entire  period  of  the  existence  of 
the  second  Temple  under  Persian  rule  to  thirty-four  years. 
They  assume  that  thirty-four  years  after  the  second  Temple 
was  built,  the  Persian  rule  in  Judea  ceased  and  the  Greek 
rule  began  (Seder  Olam  Rabba,  /.  c,  and  Shabbat,  15  a). 
Accordingly,  it  was  not  found  strange  that  Haggai,  who 
urged  the  building  of  the  Temple  as  well  as  the  other 
prophets  of  his  time,  should  have  lived  to  the  end  of  the 
Persian  period  and  have  handed  over  the  Law  and  the 
traditions  to  their  successors,  the  Qnr^n,  or  wise  lay- 
teachers  at  that  time. 

How  the  Rabbis  could  identify  these  DV:53n  with  the 
Zuggot,  so  that  the  latter,  living  in  the  second  century  B.C., 
could  be  considered  the  direct  recipients  of  the  Law  from 
the  last  prophets  at  the  end  of  the  fourth  century  b.  C, 
is  not  difficult  to  explain.  The  Rabbis  had  a  tradition  that 
the  High  Priest  in  the  time  of  Alexander  the  Great  was 
Simon  the  Just  (I)  (Yoma  69  a).  They  also  had  a  reliable 
report  of  a  high-priest  Simon  the  Just  (H)  w-ho  lived  shortly 
before  the  time  of  the  Zuggot,  either  a  little  before  or 
contemporary  with  Antigonos.  These  two  Simons  they 
confused  with  one  another.  They  identified  Simon  the 
Just  n,  who  lived  about  200  B.C.,  with  Simon  the  Just  I, 
one  of  the  last  survivors  of  the  Great  Synagogue  who  lived 
at  the  end  of  the  fourth  or  the  beginning  of  the  third 
century   B.  C.     Li   this    manner    they  established    a    direct 


MIDRASH    AND    MISHNAH  I17 

connexion  between  the  prophets  who  were  among  the  last 
members  of  the  Great  Synagogue  and  the  Zuggot  or  the 
D-oan,  the  wise  lay-teachers,  who  were  the  fathers  of  the 
Pharisaic  party.  They  were  probably  unaware  of  the  fact 
that  they  passed  over  an  interval  of  an  entire  centur}',  or 
it  may  be  that  they  consciously  ignored  it,  because,  as  we 
have  seen,  there  was  no  official  activity  of  the  teachers 
during  that  period. 

According  to  this  faulty  chronology,  then,  the  Zuggot, 
or  the  first  pair,  Jose  b.  Joezer  and  Jose  b.  Johanan, 
succeeded  the  prophets,  or  the  last  members  of  the  Great 
Synagogue,  and  commenced  their  activity  as  teachers  of 
the  Law  shortly  after  the  overthrow  of  the  Persian  limpire 
by  Alexander  ;  that  is  to  say,  not  much  later  than  the 
year  34  of  the  second  Temple.  And  it  is  actually  this 
time,  i.  e.  the  time  of  the  two  Joses,  that  Saadya  fixes  for 
the  beginnings  of  the  Mishnah.  The  meaning  of  the  passage 
in  Saadya's  Scfcj-  Hagahij  is  now  clear,  and  its  date  fully 
agrees  with  our  date  for  the  beginnings  of  the  Mishnah. 
The  passage  reads  as  follows  :  '"iD'-o  D^:t:^  "^^  mriD^  in^d  ^d  "n^i 
nju'3  prn  oinnji  nn  nis^rrn  Dvs^nii  nn^  nn^  d^h^jn-h  ^^^  nno 
I'DJ  •'3  ivonn  ni<  ijmn  nisnn  oy  dvdd  ts^vc'  ht^h  m^nb  n^yaiNn 
ip-Tiyn  TJ's  rhi:^  ^3  1i;dn''1  nyz'r\  >rh-h  NJnn  ^y  mn  jnNn  bn 
(Schechter  suggests  the  reading  ^XTiT^^)  \r\h  pinh  r\\i,rh  mp  ':n 
^rL^'?:J  d?:^^  ns  isnp^i  pn  nxi^ro  ynion  dis*^J2''1  nny^i. 

We  may,  therefore,  assume  with  certainty  that  Saadya 
had  a  correct  tradition  that  the  teaching  of  Mishnah  was 
first  begun  in  the  time  of  the  first  pair,  the  two  Joscs. 
But,  misguided  by  the  erroneous  rabbinic  chronology  which 
he  followed,  he  puts  the  date  of  this  first  pair  in  the  }-car 
40  of  the  second  Temple. 

The  conditions  which,  according  to  Saadya,  caused  the 


Il8  MIDRASH    AND    MISHNAH 

teachers  to  begin  the  composition  of  Mishnah,  also  point 
to  the  time  of  the  two  Joses.  For,  as  Saadya  assumes, 
what  prompted  the  teachers  to  seek  to  preserve  their 
teachings  in  Mishnah-form  was  the  fact  that  the  Jewish 
people  were  then  scattered  all  over  the  earth,  and  the 
teachers  feared  that  the  study  of  the  Law  might  be  for- 
gotten, N:nn  b]3  mj"'i  jnsn  ^33  y-^:  "':)  ])J2n:\  na  irnin  niN-in 
naCTi  Tii'ab.  These  conditions  actually  prevailed  in  the 
time  of  the  two  Joses.  From  the  Sibylline  Oracle  III,  271, 
we  learn  that  about  the  middle  of  the  second  century  B.C. 
the  Jewish  people  had  already  scattered  all  over  the  earth, 
and  were  to  be  found  in  every  land  (comp.  Schlirer, 
Geschichte,  WV",  p.  4).  Indeed,  the  decree  of  the  two  Joses 
declaring  the  lands  of  the  Gentiles  unclean  (Shabbat  15  a) 
may  have  been  issued  for  the  very  purpose  of  stopping 
this  extensive  emigration  of  the  people  into  foreign  lands 
(see  Weiss,  Dor,  I,  p.  99). 

Again,  from  the  quotation  of  Saadya's  statement  by 
the  Karaitic  writer,  it  would  seem  that  Saadya  designated 
the  teachers,  who  first  composed  Mishnah,  by  the  name  of 
nux.  If  this  be  so,  if  Saadya  really  applied  the  term  nux 
to  these  teachers,  he  could  have  had  in  mind  only  the 
earliest  Pharisaic  teachers,  or  the  Zuggot^  who  are  called 
in  the  Talmud  (p.  Hagigah  77  d)  Dpiyn  nnx.  I  am, 
however,  inclined  to  think  that  Saadya  did  not  use  the 
term  ni3X  in  referring  to  these  teachers.  Saadya  probably 
used  the  term  1J''"iin,  as  we  find  it  in  the  Hebrew  text 
(edition  Schechter),  and  which  simply  means,  our  fore- 
fathers. The  Karaitic  writer  who  quotes  Saadya's  state- 
ment translated  this   Hebrew  word   "iJmn    by    the  Arabic 

Our  contention  that  Saadya's  date  refers  to  the  time 


MIDRASH    AND    MISHNAH  TI9 

of  Jose  b.  Jocxcr  miL^ht  be  objected  to  on  the  f^round  that 
according  to  Saadya  (Schechter,  /.  c.)  it  took  about  500 
>'cars  from  the  beginnint^s  of  the  Mishnah  to  the  final 
completion  of  our  Mishnah.  If,  then,  Saadya's  date  coincides 
with  the  time  of  Jose  b.  Joezer,  the  actual  time  between 
the  beginnings  of  the  Mishnah  and  the  completion  of  our 
Mishnah  is  scarcely  400  years.  This  objection,  however, 
can  easily  be  removed.  Here  again  the  mistake  is  due 
to  the  faulty  chronology  followed  by  Saadya.  Having 
placed  the  beginnings  of  the  Mishnah,  i.  e.  the  time  of  the 
first  pair,  in  the  year  40  of  the  second  Temple,  and  assuming 
that  our  Mishnah  was  completed  150  years  after  the 
destruction  of  the  second  Temple,  Saadya  had  to  extend 
the  period  of  the  Mishnah  to  530  years.  I"or,  according 
to  the  talmudic  chronology,  the  second  Temple  existed 
420  years.  Accordingly  the  period  of  time  which  elapsed 
between  the  year  40  of  the  second  Temple  and  the  year 
150  after  its  destruction  was  ,^'^0  years.  This  number  was 
actually  given  by  Saadya,  as  quoted  by  the  Karaitic 
writer.  The  copyist,  however,  by  mistake  wrote  ''"pn  =  5io, 
instead  of  y'pn  =  53o  (see  Harkavy,  op.  cit..  p.  19J,  note  6). 
The  number  500  years,  niNO  D'Dn  D''3"^^,  assigned  to  the 
period  of  the  Mishnah  in  Sefcr  Hagaluj  (edition  Schechter, 
p.  5)j  probably  represents  a  round  number,  as  Schechter 
(/.  c.)  correctly  remarks. 


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